Digital Commons Network^™

The Supreme Court Disposes Of A Nuisance Suit: American Electric Power V. Connecticut, Jonathan H. Adler

Faculty Publications

In American Electric Power v. Connecticut the Supreme Court confronted climate change litigation for the second time. Whereas Massachusetts v. EPA was a closely divided court decision with dramatic and far-reaching legal and policy implications, AEP was a narrow, unanimous opinion that hewed closely to well-settled precedent. In AEP the Court side-stepped difficult jurisdictional questions and rejected an ambitious effort to turn the federal common law of nuisance into a judicially administered environmental regulatory regime. While not erecting any new barriers to future climate suits, the Court’s opinion raised cautions about trying to make climate change policy through the judiciary. …

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Normative Elements Of Parole Risk, W. David Ball

Faculty Publications

Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.

One way to answer this question would be to make our calculations more inclusive of all the costs and benefits of release and comparing them with the costs and benefits of retention. Elementary as this …

Like Deck Chairs On The Titantic: Why Spectrum Reallocation Won't Avert The Coming Data Crunch But Technology Might Keep The Wireless Industry Afloat, Brian J. Love, David J. Love, James V. Krogmeier

Faculty Publications

Skyrocketing mobile data demands caused by increasing adoption of smartphones, tablet computers, and broadband-equipped laptops will soon swamp the capacity of our nation's wireless networks, afact that promises to stagnate a $1 trillion slice of the nation's economy. Among scholars and policymakers studying this looming "spectrum crisis, " consensus is developing that regulators must swiftly reclaim spectrum licensed to other industries and reallocate those rights to wireless providers. In this interdisciplinaryp iece, we explain in succinct terms why this consensus is wrong. With data demands increasing at an exponential rate, spectrum reallocation plans that promise only linear growth are destined …

Revisiting Search Engine Bias, Eric Goldman

Faculty Publications

Questions about search engine bias have percolated in the academic literature for over a decade. In the past few years, the issue has evolved from a quiet academic debate to a full-blown regulatory and litigation frenzy. At the center of this maelstrom is Google, the dominant market player.

This Essay looks at changes in the industry and political environment over the past half-dozen years that have contributed to the current situation. This essay supplements my prior contribution to the literature, a 2006 essay entitled Search Engine Bias and the Demise of Search Engine Utopianism.

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Faculty Publications

No abstract provided.

Insurance Theory And Challenges Facing The Development Of Microinsurance Markets, James C. Brau, Craig B. Merrill, Kim B. Staking

Faculty Publications

Microinsurance institutions and instruments have developed rapidly over the last decade, with policies covering tens of millions at the base of the economic pyramid. Ranging from simple policies providing life or health insurance to complex policies covering catastrophic risks for small landholders, it is a market with proven potential that demands closer attention. This paper provides a review of the nascent academic literature and then suggests some critical elements of insurance theory that may help us understand the challenges facing microinsurance markets and how these markets can better serve the needs of their customers. Although the basic theory is well …

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses, Eric R. Carpenter

Faculty Publications

No abstract provided.

The Legal Dilemma Of Guantánamo Detainees From Bush To Obama, Linda A. Malone

Faculty Publications

No abstract provided.

Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Criminal Justice Information Sharing: A Legal Primer For Criminal Practitioners In California, W. David Ball, Robert Weisberg

Faculty Publications

California criminal justice agencies need access to data in order to provide security, health care treatment, and appropriate programming, as well as to coordinate these activities with other agencies. By the same token, outside agencies—whether criminal, social service, or non-governmental—could often do their jobs more effectively with access to information generated or retained within particular criminal justice agencies. Criminal justice realignment under AB 109 has only heightened the need for inter-agency data sharing and cooperation, yet there continue to be misunderstandings about the legal framework surrounding information exchange.

This Article aims to provide a basic, practical background on the legal …

Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii

Faculty Publications

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …

Does Ricci Herald A New Disparate Impact?, Joseph Seiner, Benjamin N. Gutman

Faculty Publications

Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court's recent decision in Ricci v. DeStefano may signal a sea change for this disparate impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion also can be read to suggest a new affirmative defense for employers facing claims of disparate impact. Before Ricci, disparate impact was a purely no-fault doctrine. An employer was …

How To Help Your Community Recover From Disaster: A Manual For Planning And Action, Judah J. Viola,, Society For Community Research & Action Task Force For Disaster, Community Readiness, And Recovery

Faculty Publications

No abstract provided.

Parental Entitlement And Corporal Punishment, James G. Dwyer

Faculty Publications

No abstract provided.

Reverberation-Chamber Test Environment For Outdoor Urban Wireless Propagation Studies, Helge Fielitz, Kate A. Remley, Christopher L. Holloway, Qian Zhang, Qiong Wu, David W. Matolak

Faculty Publications

We introduce a test environment to replicate the well-known clustering of reflections in power delay profiles arising from late-time delays and reflections. Urban wireless propagation environments are known to exhibit such clustering. The test setup combines discrete reflections generated by a fading simulator with the continuous distribution of reflections created in a reverberation chamber. We describe measurements made in an urban environment in Denver, CO, that illustrate these multiple distributions of reflections. Our comparison of measurements made in the urban environment to those made in the new test environment shows good agreement.

The Beginning Of The End For Life Without Parole?, Michael M. O'Hear

Faculty Publications

No abstract provided.

If You Speak Up, Must You Stand Down: Caperton And Its Limits, Richard M. Esenberg

Faculty Publications

No abstract provided.

Compassion And The Public Interest: Wisconsin’S New Compassionate Release Legislation, Gregory J. O'Meara

Faculty Publications

No abstract provided.

Recklessness In Context: Individual And Situational Correlates To Aggressive Driving, Paul B. Harris, John M. Houston

Faculty Publications

Traffic-related injury and fatality are major health risks in the United States and worldwide. One contributor to road accidents is unsafe and aggressive driving practices. We examined individual and situational aspects of aggressive driving by having 152 undergraduate students complete self-report measures. Aggressive driving was related to personality variables, such as hostility, sensation seeking, and competitiveness, as well as to social variables such as driving without passengers and characteristics of the target vehicle (e.g., passengers, age, and status of driver), environmental variables (e.g., type of road, traffic, and weather), and temporal variables (e.g., time pressure and time of day).

Privacy Is The Problem, Raymond Shih Ray Ku

Faculty Publications

A local school district remotely activates laptop web cameras that allegedly record the activities of students, even in their bedrooms.1 The President authorizes the National Security Agency (NSA) to monitor the telephone calls and electronic communications of individuals within the United States on an unprecedented scale in the interest of national security.2 Even a cursory examination of the news suggests that the activities and communications of Americans are increasingly subject to government surveillance from every level of government. Whatever we may think about the necessity for this surveillance, we should question how such programs come into being; in other words, …

Aba Explains Prosecutor's Ethical Disclosure Duty, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

The ABA Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion explaining that the ethical duty of the prosecutor under Model Rule 3.8(d) to disclose exculpatory evidence and information to the defendant is separate from, and more expansive than, the disclosure obligations under the Constitution. This column reviews the opinion and its implications for discovery in criminal cases.

Scientific Fraud, Paul C. Giannelli

Faculty Publications

Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.

Unlimited Power: Why The President’S (Warrantless) Surveillance Program Is Unconstitutional, Raymond Shih Ray Ku

Faculty Publications

In this essay, Professor Ku explores the constitutionality of the President's Surveillance Program (PSP), and critiques the Bush Administration's legal explanations supporting warrantless surveillance. Defenders of the program have relied upon the President's inherent executive authority, the Congressional Authorization for Use of Military Force, the FISA Amendment Act of 2008, and ultimately that under any of these sources of authority the warrantless surveillance authorized is consistent with the right of privacy protected Fourth Amendment to the U.S. Constitution. As such, Professor Ku uses the PSP to illustrate the how and why current constitutional analysis both ignores and subverts “the right …

Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli

Faculty Publications

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 22, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s …

Sorry Seems To Be The Hardest Word: The Fair Sentencing Act Of 2010, Crack, And Methamphetamine, Kyle Graham

Faculty Publications

This Essay considers the circumstances that led to the enactment of the Fair Sentencing Act of 2010, which increased the quantities of crack cocaine necessary to implicate mandatory minimum prison sentences for federal drug trafficking crimes, and considers whether the Act might facilitate re-evaluation of the penalty scheme applicable to methamphetamine.

Just Kids: Baltimore’S Youth In The Adult Criminal Justice System, Wendy Hess

Faculty Publications

Maryland’s 20 year experiment with the “tough on crime” approach of automatically sending youth into adult criminal courts, jails and prisons for certain offenses has failed. National studies show that youth who are sent to adult facilities go on to commit more—and more violent—crimes than those who received rehabilitative services in the juvenile system. This costs taxpayers much more in the long run. Automatically charging youth as adults has been politically popular. But the data shows that when their cases are individually considered, most cases in Baltimore are dismissed or sent back to the juvenile system, raising the question of …

E Pluribus Unum: Data And Operations Integration In The California Criminal Justice System, W. David Ball

Faculty Publications

This Article reflects some of the insights from the Stanford Criminal Justice Center's (SCJC's) year-long project on data and operations integration in California's criminal justice system. Part I lays out some of the benefits of an integrated system as a means of illustrating why law enforcement agencies across the state are actively pursuing data integration. Part II discusses three organizational and political obstacles to creating an integrated system: defining what we mean by  the criminal justice "system," drawing boundaries of relevant networks, and resolving tensions among state and local agencies with concurrent jurisdiction. Part III then discusses three ways in …

The Civil Case At The Heart Of Criminal Procedure: In Re Winship, Stigma, And The Civil-Criminal Distinction, W. David Ball

Faculty Publications

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can expose an individual to the same or greater deprivation of liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to …