Digital Commons Network^™

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …

Market Myopia's Climate Bubble, Madison Condon

Faculty Scholarship

A growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing can exist at the level of individual assets drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: 1. Lack the fine-grained asset-level data they need in order to assess risk exposure; 2. Continue to rely on outdated means of assessing risk; 3. Have misaligned incentives resulting in climate-specific agency costs; 4. Have myopic biases exacerbated by climate change …

The Uncertain Foundations Of Public Law Theory, Jud Mathews, Emad Atiq

Faculty Scholarship

No abstract provided.

Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O’Neill, Eric Biber, Nicholas Marantz

Faculty Scholarship

California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …

In Search Of The Public Interest, Jodi L. Short

Faculty Scholarship

“Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative state. On the one hand, the public interest standard provides a vessel for agencies to infuse policymaking with the moral and ethical commitments of the community. On the other hand, regulation in the public interest opens the door to the arbitrary exercise of tyrannical state power. Despite the lofty aspirations and ominous warnings about regulation in the public interest, little is known about how agencies actually decide what is in the public interest when charged by statute to do so. …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – …

No Runs, Few Hits And Many Errors: Street Stops, Bias And Proactive Policing, Jeffrey A. Fagan

Faculty Scholarship

Equilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient and suggest bias. An unbiased officer who is seeking to maximize her hit rate would reduce the number of unproductive stops toward a group with the lower hit rate. An unbiased policing regime would generate no differences in hit rates between groups.

We use this framework to test for racial …

Criminalized Students, Reparations, And The Limits Of Prospective Reform, Amber Baylor

Faculty Scholarship

Recent reforms discourage schools from referring students to criminal law enforcement for typical disciplinary infractions. Though rightly celebrated, these reforms remain mere half-measures, as they emphasize prospective decriminalization of student conduct without grappling with the harm to generations of former students – disproportionately Black – who have been targeted by criminalizing policies of the past. Through the lens of reparations theory, this Article sets out the case for retroactive and reparations-based redress for the criminalization of students. Reparations models reposition moral norms. They acknowledge state harm, clarify the losses to criminalized students, allow for expansive forms of redress, and cast …

The Banker Removal Power, Da Lin, Lev Menand

Faculty Scholarship

The Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. Although major U.S. banks have admitted to repeated and flagrant lawbreaking in recent years, the Fed has never removed a senior executive from one of these institutions.

This Article offers the first comprehensive account of the banker removal power. It makes four contributions. First, drawing on a range of primary sources, it recovers the power’s statutory foundations, showing that …

Federalism And Equal Citizenship: The Constitutional Case For D.C. Statehood, Jessica Bulman-Pozen, Olatunde C.A. Johnson

Faculty Scholarship

As the question of D.C. statehood commands national attention, the legal discourse remains stilted. The constitutional question we should be debating is not whether statehood is permitted but whether it is required.

Commentators have been focusing on the wrong constitutional provisions. The Founding document and the Twenty-Third Amendment do not resolve D.C.’s status. The Reconstruction Amendments — and the principle of federated, equal citizenship they articulate — do. The Fourteenth Amendment’s Citizenship Clause, as glossed by subsequent amendments, not only establishes birthright national citizenship and decouples it from race and caste but also makes state citizenship a constitutive component of …

Illiberalism And Administrative Government, Jeremy K. Kessler

Faculty Scholarship

Driven by the perception that liberal democracy is in a state of crisis across the developed world, political and legal commentators have taken to contrasting two alternatives: “illiberal democracy” (or populism) and “undemocratic liberalism” (or technocracy). According to the logic of this antinomy, once an erstwhile liberal-democratic nation-state becomes too populist, it is on the path toward illiberal democracy; once it becomes too technocratic, it is on the path toward undemocratic liberalism.

While the meanings of liberalism and democracy are historically and conceptually fraught, the contemporary discourse of liberal democratic crisis assumes a few minimal definitions. Within this discourse, liberalism …

Tributes To Family Law Scholars Who Helped Us Find Our Path, Ann Laquer Estin, Melissa Murray, June Carbone, Barbara A. Atwood, Paul M. Kurtz, J. Thomas Oldham, Bruce M. Smyth, Brian H. Bix, Elizabeth S. Scott, R.A. Lenhardt, Jessica Dixon Weaver, Solangel Maldonado, Sacha M. Coupet

Faculty Scholarship

At some point after the virus struck, I had the idea that it would be appropriate and interesting to ask a number of experienced family law teachers to write a tribute about a more senior family law scholar whose work inspired them when they were beginning their careers. I mentioned this idea to some other long-term members of the professoriate, and they agreed that this could be a good project.

So I reached out to some colleagues and asked them to participate. Many agreed to join the team. Some suggested other potential contributors, and some of these suggested faculty members …

Adversarial Scrutiny Of Evidentiary Statistical Software, Rediet Abebe, Moritz Hardt, Angela Jin, John Miller, Ludwig Schmidt, Rebecca Wexler

Faculty Scholarship

The U.S. criminal legal system increasingly relies on software output to convict and incarcerate people. In a large number of cases each year, the government makes these consequential decisions based on evidence from statistical software — such as probabilistic genotyping, environmental audio detection and toolmark analysis tools — that the defense counsel cannot fully cross-examine or scrutinize. This undermines the commitments of the adversarial criminal legal system, which relies on the defense’s ability to probe and test the prosecution’s case to safeguard individual rights.

Responding to this need to adversarially scrutinize output from such software, we propose robust adversarial testing …

In Search Of Good Corporate Governance, Dorothy S. Lund

Faculty Scholarship

In this Forum Response, Dorothy Lund considers whether the “corporate governance gap” between large and small public companies is the product of harmful or beneficial forces, and in so doing, rejects the idea that there is a single governance framework that is optimal for all public companies.

New Originalism: Arizona's Founding Progressives On Extreme Punishment, John Mills, Aliya Sternstein

Faculty Scholarship

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly regarding constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its Constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds. Arizona was founded in 1912 as …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Paths To Downstream Innovation, Janet Freilich

Faculty Scholarship

No abstract provided.

Proxy Crimes And Overcriminalization, Youngjae Lee

Faculty Scholarship

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, …

Replies To Commentators, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in …

The Challenge Of Radical Reform In Pluralist Democracies, Aditi Bagchi

Faculty Scholarship

Martijn Hesselink proposes a new European charter of private law that would correct the deficiencies in private law identified by Katharina Pistor. While Hesselink aims to achieve radical reform by way of radical democracy, this article argues that radical democracy is unlikely to realise a radically progressive vision of private law. Citizens of wealthy, post-industrial democracies lack certainty about both the material consequences of reform and the demands of justice. Because their caution renders them averse to far-reaching, bundled reform packages, public discourse in post-industrial societies as we find them is more likely to produce incremental than radical substantive reform.

Bringing Up The Bodies, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Legitimizing Lies, Courtney M. Cox

Faculty Scholarship

Lies are everywhere today. This scourge of misinformation raises difficult questions about how the law can and should respond to falsehoods. Legal discourse has traditionally focused on the law’s choice between penalizing and tolerating lying. But this traditional framing vastly oversimplifies the law’s actual and potential responses. Using trade secrets as a case study, this Article shows that the law sometimes accepts lies as a legitimate option for fulfilling legal requirements and may even require lies in increasingly common circumstances.

Commonly supposed legal and moral commitments against lying do not undermine this reality. To the contrary, the Article reveals that …

Mala Prohibita, The Wrongfulness Constraint, And The Problem Of Overcriminalization, Youngjae Lee

Faculty Scholarship

The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of tools to defend various mala prohibita offenses as satisfying the wrongfulness constraint, it is often not a straightforward matter …

Innovation And Equality: An Approach To Constructing A Community Governed Network Commons, Rider W. Foley, Olivier Sylvain, Shelila Foster

Faculty Scholarship

Networked computing affords users distinct opportunities to communicate with each other, build relationships, transact business, and create. Yet, the digital divide perpetuates existing disparities between social groups. Interventions that rely on private ownership or philanthropy often fall short. Efforts to redress these disparities require collaboration across academic disciplines and with government and private sector organizations. This paper chronicles efforts in Harlem to address this through a collaborative approach to networked computing. We draw on two concepts--responsible innovation and co-governance--to sketch a community-based approach to networked computing. Second, the article identifies two potential systems, based in property law, through which a …

Impeaching Legal Ethics, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …

Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown

Faculty Scholarship

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …

Rate Base The Charge Space: The Law Of Utility Ev Infrastructure Investment, Adam D. Orford

Faculty Scholarship

To fight climate change and support the transition to a zero- emissions transportation sector, the United States is setting out to build a huge fleet of electric vehicle (EV) charging stations. But EV charging infrastructure—often called EV supply equipment (EVSE)—is expensive, and how to pay for it is not straightforward. This Article explores the emerging law and policy of using the bill payments of millions of electric utility customers to solve the problem. State utility regulators, in obscure technical proceedings, have begun directing billions of ratepayer dollars toward EVSE. Is this an unfair and risky social spending experiment, as its …

Response: Radicalism And Democracy In Monetary System Reform, John Crawford

Faculty Scholarship

No abstract provided.

Bankruptcy Process For Sale, Kenneth Ayotte, Jared Ellias

Faculty Scholarship

The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process …

Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein

Faculty Scholarship

Legal regimes in the United States generally conceptualize obligations as attaching along one of two pathways: through the entity or the individual. Although these dual conceptualizations made sense in an ordinary pre-modem world, they no longer capture the financial system land­ scape, now that artificial intelligence has entered the scene. Neither person nor entity, artificial intelligence is an activity or a capacity, something that mediates relations between individuals and entities. And whether we like it or not, artificial intelligence has already reshaped financial markets. From Robinhood, to the Flash Crash, to Twitter's Hash Crash, to the Knight Capital incident, each …