Digital Commons Network^™

Decoding The Impossibility Defense, Daniel B. Yeager

Faculty Scholarship

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.

Although it is now hornbook that impossible attempts are …

Interrogation Or Experimentation? Assessing Non-Consensual Human Experimentation During The War On Terror, William J. Aceves

Faculty Scholarship

The prohibition against non-consensual human experimentation has long been considered sacrosanct. It traces its legal roots to the Nuremberg trials although the ethical foundations dig much deeper. It prohibits all forms of medical and scientific experimentation on non-consenting individuals. The prohibition against non-consensual human experimentation is now well established in both national and international law.

Despite its status as a fundamental and non-derogable norm, the prohibition against non-consensual human experimentation was called into question during the War on Terror by the CIA's treatment of "high-value detainees." Seeking to acquire actionable intelligence, the CIA tested the "theory of learned helplessness" on …

The Rise Of Self Sidelining, Leslie Culver

Faculty Scholarship

This Article coins the term "self sidelining" as an experience emanating from two theories: impostor phenomenon and gender sidelining. The impostor phenomenon is a well-established psychological construct that describes the inability of some high-achieving women and men to internalize success. Gender sidelining, recently popularized in legal scholarship, describes the undermining of women's achievements, as compared to men, that are unactionable as legal discrimination. In view of these theories, this Article contends that when internal fraudulent feelings (imposter phenomenon) are perceived to be externally validated by male gender preference (gender sidelining), women consciously or subconsciously discipline themselves to forgo their professional …

Cost-Benefit Analysis And Human Rights, William J. Aceves

Faculty Scholarship

This Article considers whether cost-benefit analysis can provide the human rights movement with the answers it seeks. It offers an instrumentalist and empirical approach to complement the normative arguments that are most often used by the human rights movement. If human rights could be fully monetized, states could consider the full range of benefits that arise from protecting rights and the costs that occur when rights are violated. This approach could provide states with a more accurate methodology for making decisions that affect human rights. In fact, protecting human rights may prove to be cost-effective, particularly when second order costs …

The Myth Of The Reliability Test, Brandon L. Garrett, M. Chris Fabricant

Faculty Scholarship

The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases and …

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Legal History Of Medical Aid In Dying: Physician Assisted Death In U.S. Courts And Legislatures, Thaddeus Pope

Faculty Scholarship

Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.

Medical aid in dying (MAID) is not yet legally available in …

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must …

The United States, Mexico, And The War On Drugs In The Trump Administration, James M. Cooper

Faculty Scholarship

This Article examines the war on drugs as persecuted by the United States and how it has been exported to Mexico. It also explores the increased efforts in the drugs war that the Trump administration, through the U.S. Department of Justice, is pursuing at a domestic level. Part I of this Article provides an outline of the dynamics in the quickly evolving and highly tense relationship between the United States and Mexico. Part II of this Article details the historical background of the U.S.-Mexico border region and demonstrates that the border has long been a contested site. Part III provides …

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Planning Your Class To Take Advantage Of Highly Effective Learning Techniques, James Mcgrath

Faculty Scholarship

What are the most highly effective learning techniques? Take a moment and consider what you think they are. Write them down if it is convenient. The symposium that is the subject of this law review volume examines the impact of formative assessment. In this article, I will connect formative assessment possibilities with ideas on how to take advantage of some of the proven highly effective learning techniques. The road there is a bit tortuous, but it is my hope that even the most well-informed teacher will find something that they can add to their quiver of techniques to help with …

Claudia Rankine's 'Citizen': Documenting And Protesting America's Halting March Toward Racial Justice And Equality, Susan Ayres

Faculty Scholarship

After the first election of President Barak Obama in 2008, there was a sense that the United States had reached a post-racial phase in its history. That sentiment was relatively short-lived, because by 2013, when Michael Brown was killed in Ferguson, it was clear that President Obama’s election was not transformative. More recently, during the presidential campaign and after the election of President Donald Trump in 2016, undisguised racism in the United States has reared its ugly head. Activists such as the Reverend Al Sharpton have been outspoken in their criticism of President Trump. Sharpton has claimed, “Everything King fought …

Assessments All The Way Down, James Mcgrath, Andrew P. Morriss

Faculty Scholarship

The role of assessments is getting attention throughout legal education. A growing acceptance of the Graduate Record Examination (“GRE”) as an alternative to the Law School Aptitude Test (“LSAT”) and its incorporation into the U.S. News & World Report (“USN&WR”) law school rankings opened the door to changes in who is going to law school and how they are recruited. At the other end of students’ journey through legal education, the discussion of recent graduates’ bar exam performance – linked by some to declining LSAT scores of entering students – raised questions about the design of bar exams as well …

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye

Faculty Scholarship

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to …

Improving Outcomes In Child Poverty And Wellness In Appalachia In The "New Normal" Era: Infusing Empathy Into Law, Jill C. Engle

Faculty Scholarship

No abstract provided.

Improving Tax Rules By Means-Testing: Bridging Wealth Inequality And "Ability To Pay", James M. Puckett

Faculty Scholarship

The federal income tax can and should do more to address wealth disparities and income inequality. The income tax does not directly count wealth, and the realization rule and basis "step-up" at death exclude substantial amounts of income for the wealthy. The Constitution limits Congress's ability to tax wealth. Despite these serious challenges, this Article considers how to potentially bridge the gap between wealth and the income tax. For example, asset-based phase-outs in the income tax should pass muster without apportionment, although their bite would necessarily be limited. The Article posits that the public would be more receptive to phase-outs …

The Rainy Day Earned Income Tax Credit: A Reform To Boost Financial Security By Helping Low-Wage Workers Build Emergency Savings, Sarah Halpern-Meekin, Sara Sternberg Greene, Ezra Levin, Kathryn Edin

Faculty Scholarship

Financial stability depends on emergency savings. Low-wage workers regularly experience drops in income and unexpected expenses. Households with savings absorb these financial shocks but most low-income Americans lack rainy day savings. Therefore, even a small shock, like car repairs, can result in a cascade of events that throws a low-income family into poverty. Nonetheless, existing policies address emergency savings only indirectly. However, the Earned Income Tax Credit (EITC) already functions as an imperfect, makeshift savings tool. This lump sum refund at tax time gives workers a moment of financial slack, but many EITC recipients lack emergency reserves later in the …

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …

The Long Environmental Justice Movement, Jedediah Purdy

Faculty Scholarship

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …

Higher Education As A Human Right, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo

Faculty Scholarship

The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if the …

The President's Immigration Courts, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Judge Victor Marrero’S Challenge To The Legal Profession: A ‘Little Rebellion Now And Then’, John D. Feerick

Faculty Scholarship

No abstract provided.

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …

Black, White, And Blue: Bias, Profiling, And Policing In The Age Of Black Lives Matter, Bridgette Baldwin

Faculty Scholarship

The United States has experienced a series of murders at the hands of the police in recent years, from Michael Brown to Tamir Rice to Eric Garner. The brutalization of Black people at the hands of the police is not new, but many are being introduced to the concept of police brutality through the channels of social media. Hashtags like #BlackLivesMatter and #TakeAKnee have revolutionized the conversation about racism and policing, bringing these incidents into mainstream media and common conversation. This movement has led to a deeper discussion on the following questions: (1) Why are Black people viewed as violent …

End Of Life And Autonomy: The Case For Relational Nudges In End-Of-Life Decision-Making Law And Policy, Megan S. Wright

Faculty Scholarship

Autonomy is a central principle in many areas of health law. In the case of end-of-life decision-making law and policy, however, the principle of autonomy requires revision. On the whole, law conceptualizes autonomy at the end of life as an individual making private, personal decisions based solely on their interests and values, and independent of others. But ordinary people understand autonomous decisionmaking at the end of life differently, in a way that acknowledges the importance of their interpersonal relationships. Social science research has documented that strengthening relationships with others, sharing responsibility in the decision-making process with healthcare providers, and taking …

Revolution V. Evolution In Class Action Reform, Richard L. Marcus

Faculty Scholarship

No abstract provided.