Law Commons^™

Measuring The Impacts Of Experiential Legal Education, Robert R. Kuehn, Peter A. Joy

Scholarship@WashULaw

Experiential legal education has become an essential component of the law school curriculum, emphasizing "learning by doing" through practical experiences in law clinics, externships, and simulation courses. This pedagogical approach offers law students the critical skills and professional values required for effective and ethical practice. Despite its recognized importance and parallels with other professional disciplines, legal education still requires minimal experiential education compared to other professions. This reluctance likely stems from lingering skepticism by some legal educators about its value, even though many stakeholders, including other educators, students, recent graduates, and other legal professionals, acknowledge its significance.

This Article is …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarship@WashULaw

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …

Voting Under The Federal Constitution, Travis Crum

Scholarship@WashULaw

There is no explicit, affirmative right to vote in the federal Constitution. At the Founding, States had total discretion to choose their electorate. Although that electorate was the most democratic in history, the franchise was largely limited to property-owning White men. Over the course of two centuries, the United States democratized, albeit in fits and starts. The right to vote was often expanded in response to wartime service and mobilization.

A series of constitutional amendments prohibited discrimination in voting on account of race (Fifteenth), sex (Nineteenth), inability to pay a poll tax (Twenty-Fourth), and age (Twenty-Sixth). These amendments were worded …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Profit, Mission, And Protest At Work, Marion Crain

Scholarship@WashULaw

The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke capitalism” signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers’ values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while …

Key Un Committee Clears Path For Crimes Against Humanity Treaty Negotiations, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

On Friday, Nov. 22, 2024, the United Nations Sixth (Legal) Committee took a pivotal decision to advance toward negotiations on a global treaty regarding the prevention and punishment of crimes against humanity. The move is the latest in a series of discussions that has taken place over the past six years and brings States one step closer to finally closing the nearly 80-year-old gap in international law to comprehensively address these grave crimes.

We have been tracking this process together since 2021 in a Just Security series on the potential draft treaty, and in a recent article we chronicled the …

Justice Delayed Is Justice Denied: Moving Forward With A New Crimes Against Humanity Treaty, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Eleven years after the International Law Commission (ILC) began considering the topic of crimes against humanity, and nearly 80 years after the London Charter was negotiated in the ashes of World War II, will States finally begin negotiating a new crimes against humanity treaty next year? The answer is not yet clear, although an overwhelming majority of the States expressing themselves last week said “yes.” This essay is a snapshot of the current state of play and is based on our firsthand observation of the plenary debate as well as discussions with State delegates and members of civil society. Negotiations …

A Draft Treaty On Crimes Against Humanity Draws More Engagement From States, Leila Nadya Sadat

Scholarship@WashULaw

The world’s first treaty on crimes against humanity inched closer to reality as the U.N. General Assembly’s Sixth (Legal) Committee recently wrapped up the last of a series of “resumed sessions” before States decide this October whether to proceed to formal negotiations on the document. Significantly more States and regional groups intervened during the most recent session, held last month, than in 2023, and the number that support the draft increased. Representatives of civil society also were present in much higher numbers, issuing a “Joint Statement in Support of Progress toward a Crimes Against Humanity Treaty” from more than 400 …

Fragmented Futures: Publication Choices And The Evolution Of International Legal Scholarship, Melissa (M.J.) Durkee

Scholarship@WashULaw

How we produce and disseminate international legal scholarship affects can affect how international law itself develops. Fragmentation and siloing of international legal scholarship can diminish the coherence of international law as a shared social practice across national borders. It can also diminish the perceived salience of international law within the United States, contributing to U.S. propensities toward exceptionalism and isolationism. Non-traditional publication formats have equalizing and connecting functions, but there is still room for growth when it comes to aggregating scholarship across regional, linguistic, and disciplinary divides. Finding ways to do that will help international lawyers better accomplish the field’s …

A Regime Of Statutes: Building A Modern President In Gilded Age America (1873-1921), Andrea Scoseria Katz

Scholarship@WashULaw

At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a constitutional settlement that has structured government for approximately one hundred and thirty years. Its roots lie in the period from 1873-1921, and its defining values are interbranch cooperation, delegated problem-solving authority, and administrative expertise. This Article proposes to tell its story.

A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: …

Less Discriminatory Algorithms, Pauline Kim, Emily Black, John Logan Koepke, Solon Barocas, Mingwei Hsu

Scholarship@WashULaw

Entities that use algorithmic systems in traditional civil rights domains like housing, employment, and credit should have a duty to search for and implement less discriminatory algorithms (LDAs). Why? Work in computer science has established that, contrary to conventional wisdom, for a given prediction problem there are almost always multiple possible models with equivalent performance—a phenomenon termed model multiplicity. Critically for our purposes, different models of equivalent performance can produce different predictions for the same individual, and, in aggregate, exhibit different levels of impacts across demographic groups. As a result, when an algorithmic system displays a disparate impact, model multiplicity …

Criminal Law Minimalisms, Benjamin Levin

Scholarship@WashULaw

What is criminal law minimalism? At first blush, it appears to be the sober and sensible cousin of abolition. Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance. While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale. On the question of scope, what exactly should be …

The Major Questions Doctrine: Unfounded, Unbounded, And Confounded, Ronald M. Levin

Scholarship@WashULaw

As explicated by the Supreme Court in West Virginia v. EPA in 2022, and reaffirmed in Biden v. Nebraska in 2023, the “major questions doctrine” provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This Article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Court has given for enforcing the doctrine do not withstand scrutiny, even on their own terms.

In West Virginia and Nebraska, the Court relied heavily …

The Pedagogical Value Of Clinical Amicus Advocacy, Steven J. Alagna

Scholarship@WashULaw

This Essay makes a case for why clinical appellate amicus advocacy is particularly well suited to foster valuable experiential learning in the public interest. First, the Essay explores amicus advocacy in general, including its purposes and effectiveness. The Essay then turns to a survey of the educational benefits of amicus opportunities. Importantly, the process of identifying and pursuing amicus-eligible cases is rife with pedagogical benefits, including maximizing student engagement by broadening the kinds of cases to which students can engage (especially incorporating an element of choice that empowers students to engage with legal questions that carry a personal valence), teaching …

Subjective Costs Of Tax Compliance, Jonathan H. Choi, Ariel Jurow Kleiman

Scholarship@WashULaw

This Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing a tax return. The experiment revealed that taxpayers are more concerned about inadvertent mistakes in their tax filings than the time spent on compliance. Respondents also only ascribed meaningful value to eliminating all tax compliance work; they ascribed essentially no value to marginal time savings. Additionally, taxpayers were indifferent between simplification services offered by a …

Lawyering In The Age Of Artificial Intelligence, Jonathan H. Choi, Monahan Amy, Daniel Schwarcz

Scholarship@WashULaw

We conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4, tracking how long the students took on each task and blind-grading the results. We found that access to GPT-4 only slightly and inconsistently improved the quality of participants’ legal analysis but induced large and consistent increases in speed. AI assistance improved the quality of output unevenly—where it was useful at all, the lowest-skilled participants saw the largest improvements. On the other hand, AI …

Independence Through Judicialization: The Politics Surrounding Administrative Adjudicators 1929-1949, Lawrence J. Liu

Scholarship@WashULaw

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why? Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political …

Open Access And U. S. Federal Information Policy, Eric Harbeson

Copyright, Fair Use, Scholarly Communication, etc.

Federal agencies are directed, as a matter of United States Federal policy, to provide free, immediate public access to peer-reviewed scholarly publications that are produced with support from Federal research grant funding. Because copyright vests in the author of the work, agencies must have permission from the author in order to provide that access. A government-wide regulation, in place since 1976, constitutes one possible source for the needed permission. The “Federal Purpose License” provides that, as a condition of Federal funding, grant recipients issue the granting agency a non-exclusive license to use all works subject to copyright and either developed …

Empirical Examination Of Factors That Influence Official Decisions In Criminal Cases Against Police Officers, Francis D. Boateng, Daniel K. Pryce, Michael K. Dzordzormenyoh, Ming-Li Hsieh, Alan Cuff

Sociology & Criminal Justice Faculty Publications

In the current paper, we examine departmental and court decision-making in criminal cases against police officers. The study has two objectives: 1) to examine variables that impact departmental decisions in criminal cases against police officers, and 2) to examine factors that affect case disposition/conviction decisions by the courts. To achieve these objectives, we analyzed nationally representative arrest data using multiple statistical approaches. The results obtained revealed important patterns that are critical to our understanding of how the courts and police departments decide matters relating to police criminality. For instance, victim characteristics significantly influenced decision-making by both the police agency and …

Second-Tier Marriages, Jeremiah A. Ho

All Faculty Scholarship

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now "on the books," the Supreme Court's treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n and 303 Creative LLC v. Elenis reveals the status quo's hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court's LGBTQ …

Exploring Mental Health Stigma Among Law Enforcement Officers, Nicholas David Chestnut

Theses and Dissertations

This applied dissertation investigates the prevalence and impact of mental health stigma among law enforcement officers (LEOs) in the United States. Despite growing awareness of the importance of mental health in the law enforcement community, stigma surrounding mental illness remains a significant barrier to help-seeking behaviors among officers. The study employed a research design that examined attitudes, perceptions, and experiences related to mental health stigma among LEOs.

Through online self-assessment surveys administered via a secure portal, participants provided insights into their attitudes toward mental illness, perceptions of stigma, and willingness to seek help for mental health concerns.

Data analysis revealed …

States, Firms, And Their Legal Fictions: Attributing Identity And Responsibility To Artificial Entities, Melissa (M.J.) Durkee

Scholarship@WashULaw

This volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that …

The Tragic Costs Of ‘Protecting’ Trans Youth, Kimberly Jade Norwood, Jaimie Hileman

Scholarship@WashULaw

In the past few decades, our nation has made substantial progress on the rights of LGBTQ+ people. The legalization of gay marriage in Obergefell v. Hodges in 2015 was transformative for our nation. Just five years later, another huge victory was scored in Bostock v. Clayton County, Georgia, when the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protected gay and transgender people.

With every gain, backlash often follows. Three years after Bostock, a tsunami of anti-LGBTQ+ bills, and more specifically, anti-Trans bills, littered the nation. Hundreds of bills have been filed since Bostock, …

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

Mainstream Media Portrayal Of Banishment And Nation-Imposed Punishment, Keely Ormond

Theses and Dissertations (Comprehensive)

“In a traditional village, we wouldn’t have a teepee with no door on it and throw somebody in there. We wouldn’t cast them out, because banishment meant death. What we had to do was restore relationships” – Ryan Beardy (Thorpe, 2022).

The following project examines the representation of Indigenous traditions, customs, and issues in Canadian mainstream media. Specifically, this project is interested in the portrayal of banishment as an Indigenous practice in Canadian mainstream news outlets. This project is based on an interpretive paradigm informed by grounded theory and concepts of media framing, postcolonialism, settler colonialism and restorative justice. Nineteen …

Book Review: Rethinking Participation In Global Governance: Voice And Influence After Stakeholder Reforms In Global Finance And Health, Melissa (M.J.) Durkee

Scholarship@WashULaw

Who is entitled to contribute to rulemaking at the international or transnational levels? "Rethinking Participation in Global Governance takes an empirical tack," confronting the important and understudied—but methodologically confounding—question of how effectively to improve the representativeness of global governance. The volume’s carefully constructed qualitative studies offer a wealth of insights but few systematic or easily generalizable answers. Nevertheless, the book has much to offer, describing models and techniques to expand participation, offering examples of how various actors in the Global South were able to make use of them, then embedding this description in the push and pull of a scholarly …

Volume 6, Issue 1 (2023) Criminal Justice Agents And Responsibility, Colleen Berryessa, Elizabeth Griffiths, Kaitlen Hubbard, Deena A. Isom, Kateryna Kaplun, Hiuxuan Li, Siyu Liu, Esther Nir, Heather L. Scheuerman, Rachel Schumann, Sandy Xie, Carolyn Yule

International Journal on Responsibility

This special issue of the International Journal on Responsibility (IJR) advances scholarship on the various ways responsibility infuses the roles of criminal justice agents. As the inaugural issue of my tenure as Editor-in-Chief, Volume 6 deepens our understanding of responsibility in the context of the criminal justice system, thereby fulfilling IJR’s aim and scope. Specifically, the articles highlight issues of responsibility within each component of the criminal justice system: police, courts, and corrections.

Do Judges Understand Technology? How Attorneys And Advocates View Judicial Responsibility In Cyberstalking And Cyberharassment Cases, Kateryna Kaplun

International Journal on Responsibility

As new technologies emerge and are increasingly used to commit interpersonal cybercrimes like cyberstalking and cyberharassment, the legal system lags in assisting victims in obtaining justice in these types of experiences. This qualitative research study explores how attorney and advocate interviewees from Illinois, New Jersey, and New York view judges’ responsibility to the law in cyberstalking and cyberharassment cases. This study finds three themes: judges’ lack of understanding of technology and its harms, discretion, and law on the books versus law in action as important factors and frameworks that contribute to why judges do not consider the importance of technology …

Assessing The Sustainable Development Dimensions Of Environmental Public Policies For Protected Natural Areas In Mexico: A 1970-2018 Perspective, Cielo María Ávila López, José Israel Herrera

Journal of Maya Heritage

Abstract: This abstract discusses the challenges and issues related to the implementation of Environmental Public Policies (EPP) for Protected Natural Areas (PNA) in Mexico from 1970 to 2018. EPPs aim to achieve sustainable development by balancing economic, environmental, and social dimensions while reconciling conservation and the use of natural resources with restrictions on their use and economic compensation to communities. However, the results of this study reveal that the establishment of PNA has been unilateral and without consensus, leading to limitations on communities' use of the environment without granting them economic compensation or productive alternatives. This has resulted in conflicts …

Who Owns Children’S Dna?, Nila Bala

Michigan Law Review

In recent years, DNA has become increasingly easy to collect, test, and sequence, making it far more accessible to law enforcement. While legal scholars have examined this phenomenon generally, this Article examines the control and use of children’s DNA, asking who ultimately owns children’s DNA. I explore two common ways parents—currently considered “owners” of children’s DNA— might turn over children’s DNA to law enforcement: (1) “consensual” searches and (2) direct-to-consumer testing. My fundamental thesis is that parental consent is an insufficient safeguard to protect a child’s DNA from law enforcement. At present, the law leaves parents in complete control of …