Law Commons^™

Compensating Exonerees In The United States, Brandon L. Garrett, Luke Mears

Faculty Scholarship

No abstract provided.

Liberty, Safety, And Misdemeanor Bail, Brandon L. Garrett, Sandra Guerra Thompson, Dottie Carmichael, David Shi, Songman Kang

Faculty Scholarship

The highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question …

Judging Firearms Evidence, Brandon L. Garrett, Eric Tucker, Nicholas Scurich

Faculty Scholarship

Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the …

Judicial Independence: An Important Yet Fragile Concept Needed For The Democracy Of The United States, Michael Johnson Jr

Capstone Showcase

My thesis explores the processes by which jurists are appointed to the bench to various State Supreme Courts through several selection methods. I delve deep into the extensive and intricate history surrounding judicial independence as an institutional concept, which has caused signs of concern for many legal and institutional scholars. My research aims to address the question: To what extent do the methods and mechanisms intended to safeguard judicial independence effectively fulfill their purpose? To answer this question, I use a pattern matching method to analyze a selection of six summary judgment cases–chosen randomly–from each state. Three cases where the …

The Violence Of Numbers: A Critical Appraisal Of The Justice Capabilities Framework, Abhineet Maurya

Socio-Legal Review

Systems of indicators and international rankings have today become a new mode of evaluating social, political, and economic life. In the context of measuring the rule of law and justice delivery systems at a local as well as a global level, such indicators enable empirically grounded solutions to justice reform issues. However, scholars like Siddharth Peter de Souza argue that the existing discourse concerning the rule of law and access to justice indicators promote a specific vision of a well functioning justice system grounded in western normative considerations. de Souza, in his book Designing Indicators for a Plural Legal World …

Law Library Blog (January 2024): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

When Ballots Are Blank: Write-In’S Serving Local Government And The Implications For A Healthy And Vibrant Democracy, Thomas J. Ruter

School of Business Student Theses and Dissertations

Our democracy depends on having a supply of candidates running for elected office, but in some instances, no one wants to run. This phenomenological study asks what the effects on a healthy and vibrant democracy are if ballots are blank and the seat is filled through write-in or appointment. Rooted in democratic theory, this study explores small, rural city elections where write-ins won election. Understudied, local governments are responsible for decisions affecting the lives of millions of people each day. Workforce scarcity, the alienation of young Americans from politics, government bashing, nasty campaigns, threats of physical harm, and other barriers …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

Private Sector Participants In International Rulemaking: Governance Models, Melissa (M.J.) Durkee

Scholarship@WashULaw

International organizations seeking to develop a principled approach to stakeholder participation in rulemaking processes should consider for-profit stakeholders, which can be influential participants. This chapter evaluates potential governance models for their effectiveness in facilitating the benefits and restraining the harms of for-profit influence in rulemaking processes, recommending a balanced approach. A successful governance model should also acknowledge that for-profit stakeholders can use a variety of channels to communicate their input, including individual business entities, trade and industry associations, other non-governmental groups, academics and think tanks, and domestic officials. Because of these sometimes invisible links between for-profit actors and other kinds …

Legitimacy And The Major Questions Doctrine, Ronald M. Levin

Scholarship@WashULaw

Questions about the legitimacy of recent Supreme Court decisions are occupying an increasingly prominent place in public law discourse. Last February, a widely discussed feature in the New York Times quoted several well-known law professors' laments that multiple decision by the newly empowered conservative majority of the Court have departed so far from accepted constitutional premises that the professor could not figure out how to teach them to their students

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With due respect to the Chief Justice, I will explain here why the MQD is itself among the few legal developments that I would describe as giving rise to …

Introduction To The Symposium On Digital Evidence, Melissa (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

The Ambivalent Logics Of Business Representation In International Organizations, Melissa (M.J.) Durkee

Scholarship@WashULaw

The United Nations and its bodies have 'opened up' to a broad range of non-state actors over the last three decades, including for-profit actors and their representatives. The shift is reflected in the UN's sustainable development goals and the Global Compact, emphasizing public-private partnerships; in greater participation of corporations at treaty conferences; in trade group roles as observers at organizations; and in multi-stakeholder projects. Yet international organizations have generally not developed robust responses to legitimacy concerns about businesses becoming closely involved in lawmaking and governance projects. These concerns focus on interest group capture, entrenchment of western economic elites, creeping privatization, …

Against Engagement, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

In this Article, we focus on a key dimension of commercial surveillance by data-intensive digital platforms that is too often treated as a supporting cast member instead of a star of the show: the concept of engagement. Engagement is, simply put, a measure of time, attention, and other interactions with a service. The economic logic of engagement is simple: more engagement equals more ads watched equals more revenue. Engagement is a lucrative digital business model, but it is problematic in several ways that lurk beneath the happy sloganeering of a “free” internet.

Our goal in this Article is to isolate …

Limitations Of The “Four-Fifths Rule” And Statistical Parity Tests For Measuring Fairness, Pauline Kim, Manish Raghavan

Scholarship@WashULaw

To ensure the fairness of algorithmic decision systems, such as employment selection tools, computer scientists and practitioners often refer to the so-called “four-fifths rule” as a measure of a tool’s compliance with anti-discrimination law. This reliance is problematic because the “rule” is in fact not a legal rule for establishing discrimination, and it offers a crude test that will often be over- and under-inclusive in identifying practices that warrant further scrutiny. The “four-fifths rule” is one of a broader class of statistical tests, which we call Statistical Parity Tests (SPTs), that compare selection rates across demographic groups. While some SPTs …

The Riddle Of Race-Based Redistricting, Travis Crum

Scholarship@WashULaw

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause …

Reducing Prescription Drug Prices: How Competition Can Make Medications Affordable For Patients - Testimony Of Rachel E. Sachs, Rachel Sachs

Scholarship@WashULaw

In this testimony, I will explain how existing law both keeps branded drug prices high but has also enabled the development of lower-cost generic and biosimilar competition for branded prescription drugs and biological products. This competition can be used to promote access to affordable prescription drugs, benefiting not only patients but also our public payers. However, I will also explain the ways in which existing legislative and regulatory efforts have not always succeeded in promoting competition and will offer a path forward for this Committee to examine reforms that not only encourage the approval of lower-cost products but also ensure …

Washu Expert: Can Trump Bypass Senate Approval Of Controversial Cabinet Nominees?, Andrea Scoseria Katz, Neil Schoenherr

Scholarship@WashULaw

Andrea Katz, an associate professor of law at Washington University in St. Louis, is an expert on constitutional law, with a focus on presidential power. Here, she discusses how Cabinet members are traditionally appointed and whether the Senate or the Supreme Court could stop Trump from doing an end-around on tradition.

Antitrust, Amazon, And Algorithmic Auditing, Jens Frankenreiter, Abhisek Dash, Abhijnan Chakraborty, Saptarshi Ghosh, Animesh Mukherjee, Stefan Bechtold, Krishna P. Gummadi

Scholarship@WashULaw

In digital markets, antitrust law and special regulations aim to ensure that markets remain competitive despite the dominating role that digital platforms play today in everyone's life. Unlike traditional markets, market participant behavior is easily observable in these markets. We present a series of empirical investigations into the extent to which Amazon engages in practices that are typically described as self-preferencing. We discuss how the computer science tools used in this paper can be used in a regulatory environment that is based on algorithmic auditing and requires regulating digital markets at scale.

Sticky Charters? The Surprisingly Tepid Embrace Of Officer-Protecting Waivers In Delaware, Jens Frankenreiter, Eric L. Talley

Scholarship@WashULaw

This article investigates the reaction to a much-heralded 2022 legal reform in Delaware that permitted a corporation’s charter to exculpate its officers from monetary exposure for breaching their fiduciary duty of care. To isolate reactions to this statutory reform, we make extensive use of generative AI tools to identify and interpret charter amendments that introduce officer-facing waivers. We find a surprisingly tepid rate of uptake among Delaware corporations through the end of the first post-reform year, notwithstanding widespread predictions that corporate entities would quickly storm the exculpation exits once permitted to do so.

Our study makes two contributions to the …

Sex & Startups, Jens Frankenreiter, Talia B. Gillis, Eric L. Talley

Scholarship@WashULaw

Venture capital is widely perceived to have a gender problem. Both founders seeking capital and the investors themselves are overwhelmingly male, fomenting concerns about how—and how fairly—the VC sector distributes its economic gains. Although gender disparities in funding are well documented, we still know little about whether the governance of VC-backed startups similarly manifests gender imbalances. This knowledge gap is critical, since VC investments often carry strings attached, in the form of cash flow and control rights that can vary substantially from deal to deal.

This study unveils a first-of-its-kind dataset that offers detailed insights into the governance of VC-backed …

The Debt Limit, Conor Clarke

Scholarship@WashULaw

Every couple of years, it seems, the debt limit shows up to wreak havoc in American law and public finance. By capping the face value of government securities that can be “outstanding at one time,” the statutory limit regularly threatens the Treasury’s ability to raise the revenue needed to fund required government spending. Brinksmanship over the limit has shut down the government, cost the country billions of dollars, and mired financial markets in uncertainty. And yet, despite its obvious and longstanding importance, the limit remains poorly understood. Commentators attribute its beginnings to 1917 and 1941, before which it is assumed …

Measuring Compliance With The California Consumer Privacy Act Over Space And Time, Jens Frankenreiter, Van Tran, Aarushi Mehrotra, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

The widespread sharing of consumers personal information with third parties raises significant privacy concerns. The California Consumer Privacy Act (CCPA) mandates that online businesses offer consumers the option to opt out of the sale and sharing of personal information. Our study automatically tracks the presence of the opt-out link longitudinally across multiple states after the California Privacy Rights Act (CPRA) went into effect. We categorize websites based on whether they are subject to CCPA and investigate cases of potential non-compliance. We find a number of websites that implement the opt-out link early and across all examined states but also find …

Whither Coursework And Nextgen Bar Exam Success?, Robert R. Kuehn

Scholarship@WashULaw

The NextGen bar exam will focus on an expanded range of essential lawyering skills and a reduced set of legal topics. Moving toward less reliance on knowledge of the black letter law concepts of past exams, it seeks to build on the successes of clinical legal education, alternative dispute resolution, and legal writing and analysis programs. With outcomes from the first NextGen exam still two years away, this commentary examines what existing research suggests about law school coursework and likely success on NextGen that might guide students and law schools in preparing for the new exam.

Regulatory Monitoring In The Information Economy, Brenda Dvoskin

Scholarship@WashULaw

The administrative state is inadequately structured to define and implement public values related to the design and operation of digital architectures, systems, and processes. The Reimagining the Governance Stack Project at Georgetown Law is a long-term, full-stack effort to reinvent the administrative state so that it is capable of governing the information economy in accordance with public priorities. This first concept paper focuses on regulatory monitoring capacities. Agencies need new tools to monitor compliance with existing public mandates and understand the information economy in order to develop new and more effective regulation.

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Scholarship@WashULaw

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

Provisioning Digital Tools And Systems For Government Use, Brenda Dvoskin, Julie E. Cohen, Paul Ohm, Meg Leta Jones, Smitha Krishna Prasad, Nina-Simone Edwards

Scholarship@WashULaw

This document is part of a larger project aimed at reinventing the administrative state for effective governance of the digital, information-driven economy. It explores how the administrative state can more effectively equip itself with digital tools and systems that align with and improve government’s ability to serve public values. Established approaches to digital provisioning fail in many important respects. Among others, they introduce thorny coordination problems while doing little to ensure design for broader public values; they cause obsolete and/or poorly conceived requirements to cascade through the development process for new tools and systems; they magnify the potential for technology-driven …

Police Diversity Theory, Trevor George Gardner

Scholarship@WashULaw

In light of both the tragic death of Tyre Nichols in Memphis at the hands of Black police officers and the mixed results of studies of Black same-race policing, this Article proposes a conceptual framework by which to better understand the utility of police diversity. The framework maps the relational possibilities among three factors: (i) the Black officer’s approach to same-race policing; (ii) the Black officer’s performance in the context of same-race policing; and (iii) the policing priorities of the Black communities the Black officer is taken to represent.

Responsive to the conceptual framework for police diversity theory, the Article …

Do Patents Drive Investment In Software?, James Hicks

Scholarship@WashULaw

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

The Vanishing Appeal?, Stefanie A. Lindquist, Kirk Randazzo

Scholarship@WashULaw

Appellate filings in the United States Courts of Appeals demonstrate a considerable decline since 2006, following an historical trend in increasing caseloads throughout the twentieth century and early parts of the twenty-first. This phenomenon deserves evaluation. In this Article, we demonstrate the trend using data from the Administrative Office of the U.S. Courts and advance a number of potential hypotheses that might assist in explaining the trend, including decreasing trial rates, unique case type and circuit variations, trends in pro se litigation, and political explanations. Ultimately, the trend in case filings in the federal appellate courts is likely the product …