Law Commons^™

Deadly 'Toxins': A National Empirical Study Of Racial Bias And Future Dangerousness Determinations, Justin D. Levinson, G. Ben Cohen, Koichi Hioki

Georgia Law Review

Since the beginning of the modern Death Penalty Era, one of the most important—and fraught—areas of capital punishment has been the so-called “future dangerousness” determination, a threshold inquiry that literally rests the defendant’s life or death on jurors’ predictions of the future. An overwhelming majority of capital executions have occurred in jurisdictions that embrace the perceived legitimacy of the future dangerousness inquiry, despite its obvious flaws and potential connection to the age-old racial disparities that continue to plague capital punishment. This Article presents, and empirically tests, the hypothesis that jurors’ future dangerousness assessments cannot be separated from their racial and …

Do Esg Funds Deliver On Their Promises?, Quinn Curtis, Jill E. Fisch, Adriana Z. Robertson

All Faculty Scholarship

Corporations have received growing criticism for their role in climate change, perpetuating racial and gender inequality, and other pressing social issues. In response to these concerns, shareholders are increasingly focusing on environmental, social, and corporate governance (ESG) criteria in selecting investments, and asset managers are responding by offering a growing number of ESG mutual funds. The flow of assets into ESG is one of the most dramatic trends in asset management.

But are these funds giving investors what they promise? This question has attracted the attention of regulators, with the Department of Labor and the Securities and Exchange Commission (SEC) …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson

Utah Law Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

All Faculty Scholarship

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton

All Faculty Scholarship

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

All Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

An Innovative Approach To Movement Lawyering: An Immigrant Rights Case Study, Christine N. Cimini, Doug Smith

Articles

The role of lawyers in social change movements is more important than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. …

Becoming Global Lawyers? A Comparative Study Of Civic Professionalism, John Bliss

Sturm College of Law: Faculty Scholarship

Through their professional education and training, new lawyers are generally encouraged to adopt a civic vision of professional identity. This article explores convergences and diverges in how new lawyers entering an increasingly globalized legal profession conceive of their civic roles in different national contexts. In particular, I examine corporate lawyers-in-training in the U.S. and China, drawing on interviews and a cross-cultural identity mapping method to compare their accounts of the lived experiences of civic professionalism. I find that professional identity formation in the U.S. sample is largely marked by role distancing and a sense of constrained public-interest expression. In contrast, …

How To End Our Stories: A Study Of The Perspectives Of Seniors On Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

Because dementia can cause individuals to make decisions that they otherwise would not, the law needs a mechanism to determine which decisions are entitled to the respect of the legal system and which may be overridden by others. In the philosophical literature, three primary theories for how to make this determination have been offered. First, "Cognitivism" posits that whether a decision should be recognized is a function of the mechanical functioning of the individual's brain at the time the decision is made. Second, "Essentialism" holds that decisions should be recognized so long as they are consistent with the cluster of …

Improving The Credibility Of Empirical Legal Research: Practical Suggestions For Researchers, Journals, And Law Schools, Jason Chin, Alexander Dehaven, Tobias Heycke, Alexander Holcombe, David Mellor, Justin Pickett, Crystal Steltenpohl, Simine Vazire, Kathryn Zeiler

Faculty Scholarship

Fields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly available, and preregistering studies. Empirical legal research appears to be lagging behind other fields. This may be due, in part, to a lack of meta-research and guidance on empirical legal studies. The authors seek to fill that gap by evaluating some indicators of credibility in empirical legal research, including a review of guidelines at legal journals. They then provide both general recommendations for researchers, and more specific recommendations aimed at three commonly …

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a …

Strength In Numbers (Of Words): Empirical Analysis Of Preambles And Public Comments, Anthony L. Moffa

Faculty Publications

The empirical observation of a four-decades-long trend towards longer and longer federal agency rulemakings laid the foundation for this series of studies and associated law review articles. The second in that series, this work will add necessary data, test important hypotheses, and draw new conclusions to guide policymakers. Any serious observer of the Federal Register recognizes that different sections of a rulemaking serve different purposes. And agencies have historically utilized one section in particular to insulate their rules from judicial vacation or remand – the “concise general statement of basis and purpose.” Thus, this new study will collect and analyze …