Law Commons^™

Interrogating Police Officers, Stephen Rushin, Atticus Deprospo

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.

The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these …

Deliberate Democracy, Truth, And Holmesian Social Darwinism, Alexander Tsesis

Faculty Publications & Other Works

JUSTICE Oliver Wendell Holmes Jr.'s “marketplace of ideas” analogy continues to deeply influence First Amendment doctrine. It provides a rational substratum upon which the political or self-realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice's thought. He championed the spread of ideas and the political sway of majority opinions. That analytical insight is key to many of the Supreme Court's free speech precedents. On the one hand, the concept is invaluable for defending free discussions about philosophy, political science, the arts, humanities, pedagogy, and social sciences. In these areas, the …

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.

The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these …

Taking Laughter Seriously At The Supreme Court, Matthew Sag

Faculty Publications & Other Works

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court's serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter. The performative nature of courtroom humor is apparent …

Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis

Faculty Publications & Other Works

The European Union's right to erasure came into effect May 25, 2018, as Article 17 of the General Data Protection Regulation ("GDPR"). Unlike the U.S. "marketplace of ideas" model of free speech, the GDPR gives greater weight to data subjects' privacy interests than to audiences' curiosity about others' intimate lives. The U.S. and EU models advance human thirst for knowledge through open and uninhibited debates, whereas the internet marketplace tends to favor social media companies' commercial interests: put more specifically, free speech is not entirely harmonious with the interests of social media intermediaries whose algorithms tend to favor companies' bottom …

He New Oral Argument: Justices As Advocates, Matthew Sag, Tonja Jacobi

Faculty Publications & Other Works

This Article conducts a comprehensive empirical inquiry of fifty-five years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant …

Antitrust And Democracy, Spencer Weber Waller

Faculty Publications & Other Works

Our solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under …

Marketplace Of Ideas, Privacy, And The Digital Audience, Alexander Tsesis

Faculty Publications & Other Works

The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy. Social media companies disseminate news, advertisements, and political messages, while also capitalizing on consumers' private shopping, surfing, and traveling habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash up and scrape enormous amounts of online and otherwise …

War Is More Than A Political Question: Reestablishing Original Constitutional Norms, John C. Dehn

Faculty Publications & Other Works

Since World War II, it has become increasingly common practice for presidents to use non-defensive military force abroad without obtaining congressional pre-approval, thereby leaving Congress with no meaningful role in the decision. This modern practice is clearly at odds with the Constitution’s text and original meaning. A wealth of scholarly commentary concludes that the Constitution grants Congress alone the power to authorize non-defensive military force. Although not expressly mentioned in the Constitution, ample commentary also concludes that a president has inherent constitutional power only to defend the nation from an actual or impending attack.

This Essay rejects the notion that …

Deracialization And Democracy, Steven Ramirez, Neil G. Williams

Faculty Publications & Other Works

The United States suffers the conthiued costs of mahitainhig a racial hierarchy. Enhanced diversity and growhig realization of the economic costs of that hierarchy could lead to democratic pressure for reform. Yet, in the U.S., elites on the radical right seek to entrench themselves in power through the constriction of voting power and the strategic use of the racial hierarchy as a political tool. This Article traces the anti-democratic efforts of the radical right to limit the political power of the nation's enhanced diversity, and to utilize archaic governance measures to entrench themselves politically, regardless of the costs of allowing …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

Democratic Conditions, Barry Sullivan

Faculty Publications & Other Works

According to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who “represent” them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions …

Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak

Faculty Publications & Other Works

No abstract provided.

Lehman 10 Years Later: Lessons Learned?, Steven A. Ramirez

Loyola University Chicago Law Journal

No abstract provided.

Perspectives On Dodd-Frank Act, Risk Management, And The Financial Crisis Of 2008 From A Former Chief Risk Officer, Jeff Cohodes

Loyola University Chicago Law Journal

No abstract provided.

The Federalization Of Corporate Governance—An Evolving Process, Marc I. Steinberg

Loyola University Chicago Law Journal

This Article focuses on the timely subject of the federalization of corporate governance in the United States from both contemporary and historical perspectives. Although the states traditionally have overseen the sphere of corporate governance, federal law today affects the governance of publicly held corporations to a greater extent than ever before in our nation’s history. This Article, drawn from the author’s recently published Oxford University Press book (The Federalization of Corporate Governance), addresses this timely subject from the commencement of the 20th century to the present. Through the decades, the federalization of corporate governance has gone through periods …

Regulating Through Financial Engineering: The Office Of Financial Research And Pull Of Models, James Hackney

Loyola University Chicago Law Journal

No abstract provided.

From Fire Hose To Garden Hose: Section 13(3) Of The Federal Reserve Act, Christian A. Johnson

Loyola University Chicago Law Journal

At the height of the Great Financial Crisis, the Federal Reserve employed a previously unused section of the Federal Reserve Act, Section 13(3), to engage in a level of lending unparalleled in global financial history. Section 13(3) provided a firehose of liquidity for the US financial system, and The Federal Reserve used it to successfully fight the Great Financial Crisis. However, once the worst of the crisis had passed, Congress quickly acted to limit the Federal Reserve’s powers under Section 13(3) by passing Dodd-Frank and introducing the orderly liquidation authority. These limitations have reduced the Federal Reserve’s Section 13(3) power …

Whistling Past The Graveyard: Dodd-Frank Whistleblower Programs Dodge Bullets Fighting Financial Crime, Mary Kreiner Ramirez

Loyola University Chicago Law Journal

The United States’ reaction to the 2008 Financial Crisis, which caused global ramifications, included the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act to address a lack of oversight and accountability in the financial industry. Among its provisions, Dodd-Frank provided incentives for whistleblowers to report misconduct and protections for those who do. Despite its success, Dodd-Frank’s whistleblower programs face internal and external challenges that threaten their success. This Article discusses the current climate surrounding corporate accountability and suggests additional protections for whistleblowers and whistleblower actions: allowing private lawsuits against the government under Dodd-Frank’s whistleblower provisions, similar to …

The Litigation Rollercoaster Of Bipa: A Comment On The Protection Of Individuals From Violations Of Biometric Information Privacy, Anna L. Metzger

Loyola University Chicago Law Journal

As technology progresses, businesses are enacting new programs that utilize emerging technology. Biometric data is an example of a tech capability that is becoming more popular for businesses. Companies can use an individual’s unique body data to monitor their employees, collect data, and enhance security and convenience for their customers. While this technology is impressive, it comes with privacy and security concerns. In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA) to address these concerns. BIPA aims to protect individuals by setting strict guidelines for data collection by private entities. Individuals can file suit for violations of this statute, …

The Value Of Deviance: Understanding Contextual Privacy, Timothy Casey

Loyola University Chicago Law Journal

The value of deviance lies in highlighting the infirmity in our present concept of privacy. Deviance helps explain privacy in two ways. First, deviance helps define what might be protected by “privacy concerns.” Second, a sociological definition of deviance provides a helpful model to rebut the popular “Nothing to Hide” argument and to understand a non-binary concept of contextual privacy. This article uses a sociological definition of deviance to explain a contextual idea of privacy, where the critical inquiry is not a dualistic response to whether sensitive information deserves protection as private or not, but rather a contextual analysis of …

Up Against The Wall: Congressional Retention Of The Spending Power In Times Of “Emergency”, Linda Sheryl Greene

Loyola University Chicago Law Journal

President Trump’s border wall has evolved from an ambitious campaign promise into a real opportunity to explore presidential versus Congressional authority to determine how the president spends Congressionally appropriated funds. The president’s arguments that he has the power to build the wall under either the National Emergencies Act or the funding provisions of 10 U.S.C. § 9705 or 10 U.S.C. § 284 lack merit—the cited non-emergency-tied statutes do not provide funding for the wall. The former authorizes the utilization of Treasury Forfeiture funds tied to specific law enforcement activities but excludes the ambitious and broad construction project the president proposed; …

War Is More Than A Political Question: Reestablishing Original Constitutional Norms, John C. Dehn

Loyola University Chicago Law Journal

No abstract provided.

South Dakota V. Wayfair: Erasing A Dull Bright-Line, Aidan V. Nuttall

Loyola University Chicago Law Journal

For over half a century, states were unjustly deprived access to a significant portion of their tax bases due to Supreme Court precedent that was dated since its very inception. South Dakota v. Wayfair, Inc. righted this wrong by granting states the power to lay taxes on out-of-state businesses that actively solicit sales from in-state customers. For decades the judicially-created physical presence rule prevented states from collecting sales taxes on these transactions, moving tens of billions of tax dollars out of reach. The rule lead to exploitation by businesses at states’ expense.

Aside from its detrimental effect, this rule has …

Democratic Conditions, Barry Sullivan

Loyola University Chicago Law Journal

No abstract provided.

A Small Slice Of The Chicago Eight Trial, Ellen S. Podgor

Loyola University Chicago Law Journal

The Chicago Eight trial was not the typical criminal trial, in part because it occurred at a time of society’s polarization, student demonstrations, and the rise of the House Un-American Activities Committee. Charges were levied against eight defendants, who were individuals that represented leaders in a variety of movements and groups during this time. This Essay examines the opening stages of this trial from the lens of a then relatively new criminal defense attorney, Gerald Lefcourt. It looks at his experiences before Judge Julius Hoffman and highlights how strong, steadfast criminal defense attorneys can make a difference in protecting key …

Judging Judges Fifty Years After—Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Loyola University Chicago Law Journal

In Chicago, Illinois—and in courtrooms across the United States—judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman’s conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece’s examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Judging During Crises: Can Judges Protect The Facts?, Lissa Griffin

Loyola University Chicago Law Journal

With the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation. This Essay argues that the judiciary’s ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out supplemental …

Judicial Ethics: Lessons From The Chicago Eight Trial, Laurie L. Levenson

Loyola University Chicago Law Journal

No abstract provided.

Judges’ Misuse Of Contempt In Criminal Cases And Limits Of Advocacy, Peter A. Joy

Loyola University Chicago Law Journal

No abstract provided.