Law Commons^™

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

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No abstract provided.

Conservatives And The Court, Robert F. Nagel

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No abstract provided.

"Make Him An Offer He Can't Refuse"-- Mezzanatto Waivers As Lynchpin Of Prosecutorial Overreach, Christopher B. Mueller

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Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say …

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

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The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski

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Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

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The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

Circuit Splits And Empiricism In The Supreme Court, Karen M. Gebbia

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This Article demonstrates, empirically rather than merely in theory, how a failure to apply accurate data to test carefully constructed hypotheses leads to unreliable conclusions concerning the relationship between the Supreme Court and the circuit courts of appeal. Specifically, commentators routinely misapply facially accurate raw data regarding the rate at which the Court reverses circuit court decisions to support unreliable conclusions regarding the comparative degree of accord between the Court and individual circuits. Commentators and the popular press then employ these unreliable conclusions to draw unsupported inferences regarding the reasons for supposed discord between the Court and the circuits, and …

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

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No abstract provided.

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Abby K. Wood, Douglas M. Spencer

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In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First …

Re-Ordering The First Amendment, Melissa Hart

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No abstract provided.

Energy Deference, Sharon B. Jacobs

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Electricity law is complex, and the Supreme Court knows it. Lawyers are familiar with the adage that generalist courts tend to defer to agency decisions where the subject matter is complex or technical. But what features of a case make the Court more or less likely to defer to the agency's judgment? And how exactly do deference regimes work in the presence of complexity? This essay offers insights gleaned from Court's opinion in Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (“EPSA”). It explains, first, that Courts are highly deferential in energy cases due to both the complexity of …

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

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No abstract provided.

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller

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A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise admissible to rehabilitate …

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

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No abstract provided.

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

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Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

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Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

The Law's Clock, Frederic Bloom

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Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type--the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our …

Outing Privacy, Scott Skinner-Thompson

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The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

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A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

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No abstract provided.

How Do We Know When Speech Is Of Low Value?, Helen Norton

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No abstract provided.

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

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No abstract provided.

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

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Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

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The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Too Strict?, Richard B. Collins

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Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm …

Law, Violence, And The Neurotic Structure Of American Indian Law, Sarah Krakoff

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No abstract provided.

From Google To Tolstoy Bot: Should The First Amendment Protect Speech Generated By Algorithms?, Margot Kaminski

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No abstract provided.

Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

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No abstract provided.

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

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This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

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No abstract provided.