Digital Commons Network^™

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

How New Lawyers Value Law School Experiential Training, Robert R. Kuehn

Scholarship@WashULaw

While the legal academy continues to debate the appropriate role of experiential training in preparing graduates for practice, one group consistently embraces its value: newly-licensed lawyers. In repeated surveys over the past twenty years, early career lawyers, as well as experienced attorneys, report that law clinic, externship, and simulation courses play an important role in legal education. The research summarized herein demonstrates that newly-licensed lawyers highly value their law school experiential courses, deem them important in their transition to practice, and believe their legal education did not sufficiently prepare them for practice.

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …

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NYLS Law Review

No abstract provided.

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NYLS Law Review

No abstract provided.

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NYLS Law Review

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Table Of Contents, Volume 69, Issue 1

NYLS Law Review

No abstract provided.

Smith V. Smith, Brett Mcallister

NYLS Law Review

No abstract provided.

United States V. Williams, Alexandra Mccloy

NYLS Law Review

No abstract provided.

Mcginity V. Procter & Gamble Co., Gabriella Landicino

NYLS Law Review

No abstract provided.

Us Dominion, Inc. V. Fox News Network, Llc, Benjamin M. Newman

NYLS Law Review

Following the 2020 Presidential Election, Fox News Network, LLC aired commentary from television hosts, correspondents, and guests who claimed that Dominion Voting Systems manipulated votes and promoted voter fraud to falsify election results. In March 2021, Dominion filed a defamation lawsuit against Fox News, alleging that Fox News “intentionally and falsely blam[ed] Dominion for President Trump’s loss by rigging the election.”

In April 2023, Fox News and Dominion settled the defamation suit for $787.5 million. Once the agreement was publicized, Fox News’s Chief Communications Officer boasted that Fox News would deduct the settlement amount from its taxes as an ordinary …

Cover Page

NYLS Law Review

No abstract provided.

Copyright Page

NYLS Law Review

No abstract provided.

Masthead Page

NYLS Law Review

No abstract provided.

Table Of Contents, Volume 69, Issue 2

NYLS Law Review

No abstract provided.

The “Dealerization” Of America: The Sec’S Misplaced Attempt At Broker-Dealer Registration For All, Ernest Edward Badway, Abigail S. Badway

NYLS Law Review

With the new administration in office, now is an appropriate time to reconsider the United States Securities and Exchange Commission’s (the “Commission” or “SEC”) efforts to require all securities traders to register as dealers. Over the last several years, the Commission has pursued enforcement actions against individuals and entities for allegedly operating as unregistered dealers in violation of Section 15(a)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”). Notably, many of these actions involved convertible redeemable notes—debt instruments issuers can convert into common stock or redeem for cash. The SEC is now targeting established hedge funds, seeking expansive …

11 Years After Omnicare: Rethinking The Approach To Corporate Scienter, Kyle Lometti

NYLS Law Review

No abstract provided.

Natural Conclusion: Generative Ai Is Certainly Artificial But Not Really Intelligent, Christopher Kipiniak

NYLS Law Review

No abstract provided.

Betting On The Future: Regulating Microtransactions In Video Games And Proposing Comprehensive Consumer Protections, Andrew Shenberg

NYLS Law Review

No abstract provided.

Parker V. City Of Yonkers, Ryen Cinski

NYLS Law Review

No abstract provided.

Ten Years And Ten Miles: Reflecting On "Ferguson", Benjamin Levin

Scholarship@WashULaw

This Essay serves as the introduction to a symposium on the ten-year anniversary of Michael Brown's death in Ferguson, Missouri and the subsequent protests and uprisings across the country. The authors look back on the past decade—their own experiences and our experiences as a nation—to consider the impacts of the Ferguson uprisings and the landscape of criminal justice and racial justice advocacy, scholarship, and teaching today. In this Essay, I provide a brief introduction to the Volume and essays that follow. In Part I, I situate the Ferguson uprisings in the broader context of activism responsive to racial injustice in …

The Click-And-Commit World Order, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Reflections On Translating Law And Economic Models For Lawyers And Law Professors, Scott Baker

Scholarship@WashULaw

Written as part of a keynote address for the 20th Annual Asian Law and Economics Conference, these remarks reflect on the way lawyers, judges, and law professors without economic training view and use law and economic models. After revisiting notably successes of classic results from the tort model – results that have penetrated the legal profession – it turns to the translation of more recent models of lawyer argumentation and precedent. Throughout, the point is to demonstrate how model insights can be used to help argue cases and distinguish precedent.

A Liberty-Balancing Approach To Crime, Sheldon Evans

Scholarship@WashULaw

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads …

Dark Patterns In The Opt-Out Process And Compliance With The California Consumer Privacy Act (Ccpa), Jens Frankenreiter, Van Hong Tran, Aarushi Mehrotra, Ranya Sharma, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

To protect consumer privacy, the California Consumer Privacy Act (CCPA) mandates that businesses provide consumers with a straightforward way to opt out of the sale and sharing of their personal information. However, the control that businesses enjoy over the opt-out process allows them to impose hurdles on consumers aiming to opt out, including by employing dark patterns. Motivated by the enactment of the California Privacy Rights Act (CPRA), which strengthens the CCPA and explicitly forbids certain dark patterns in the opt-out process, we investigate how dark patterns are used in opt-out processes and assess their compliance with CCPA regulations. Our …

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Scholarship@WashULaw

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts. Bringing together two lines of case-law-on …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Scholarship@WashULaw

Prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925.

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in …

An Anthology Of Interference In Law School Clinics, Peter A. Joy, Robert R. Kuehn

Scholarship@WashULaw

An Anthology of Interference in Law School Clinics explores interference in law school clinics in the United States, addressing its long history and the legal ethics, academic freedom, and First Amendment responses to that interference. Law clinics have faced interference in their representation of clients from elected officials, business groups, alumni and, at times, even their own school administrators. This interference has targeted clinics for providing individuals and nongovernmental organizations with legal representation on important matters, including racial and gender discrimination, environmental issues, prisoner rights litigation, death penalty cases, and immigration and human rights matters. In each instance, the interference …