Law Commons^™

Reasonable Classification Versus Equality Under The Indian Constitution, Jahnavi Sindhu, Vikram Aditya Narayan

National Law School Journal

This article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive …

“Aspirations”: The United States And Indigenous Peoples’ Human Rights, Kristen A. Carpenter

Publications

The United States has long positioned itself as a leader in global human rights. Yet, the United States lags curiously behind when it comes to the human rights of Indigenous Peoples. This recalcitrance is particularly apparent in diplomacy regarding the United Nations Declaration on the Rights of Indigenous Peoples. Adopted by the United Nations General Assembly in 2007, the Declaration affirms the rights of Indigenous Peoples to self-determination and equality, as well as religion, culture, land, health, family, and other aspects of human dignity necessary for individual life and collective survival. This instrument was advanced over several decades by Indigenous …

The War On Terror & Vigilante Federalism, Maryam Jamshidi

Publications

No abstract provided.

Regulating The Risks Of Ai, Margot E. Kaminski

Publications

Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.

This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …

How Private Actors Are Impacting U.S. Economic Sanctions, Maryam Jamshidi

Publications

Economic and trade sanctions are typically understood as the exclusive province of governments and intergovernmental organizations. Private parties have, however, long played a role in sanctions regimes. For example, private plaintiffs holding unsatisfied, terrorism-related civil judgments have used various U.S. federal statutes to enforce those judgments against assets blocked by U.S. sanctions. Most recently, plaintiffs with judgments against the Taliban have used some of those federal laws to execute against the financial assets of Afghanistan’s central bank. These and other efforts to enforce terrorism-related civil judgments are more than just attempts to collect on outstanding damages awards. Rather, they allow …

Electoral Maintenance, Douglas M. Spencer

Publications

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

Unequal Homes, Unequal Health: Applying The Loss Of Chance Doctrine To Landlord-Tenant Cases, Delaram Takyar

Publications

Low-income families and families of color in the U.S. are disproportionately likely to live in homes that are negligently maintained by landlords, with significant implications for their physical health. Despite suffering harm, tenants often cannot seek legal relief without ruling out all possible alternate causes of their injuries. For example, if a tenant develops asthma after being exposed to black mold in her home and can show that her landlord had knowingly refused to remediate the mold, the tenant would still be barred from relief if she were genetically predisposed to developing asthma or could have also been exposed to …

Preface: New Directions In Prosecutorial Reform, Miriam Aroni Krinsky, Justin Murray, Maybell Romero

Publications

This Preface, which introduces the American Criminal Law Review’s Symposium Issue on Reform-Minded Prosecution, begins by describing the power that prosecutors hold in the criminal legal system, which has historically gone unchecked and unquestioned. As mass incarceration, police violence, and wrongful convictions began to permeate the public consciousness, many communities focused their attention on the critical role of their local elected prosecutor and elected leaders who promised to do the job differently. Reform-minded prosecutors have enjoyed remarkable electoral successes over the past decade such that close to twenty percent of the U.S. population now resides in a jurisdiction with a …

United States Department Of Labor Scientific Integrity Policy

Copyright, Fair Use, Scholarly Communication, etc.

United States Department of Labor Scientific Integrity Policy

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

Entire Issue Vol. 16 No. 27

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

"How Exactly Does It Get Done Here?" Conducting Cross-Jurisdictional Research With Judges And Court Staff, Paula Hannaford-Agor

Faculty Publications

The legal, political, and organizational environment in which judges and court staff work affects their performance in significant ways. To ensure that researchers control for these effects, it is critical that they take sufficient time in the research design phase to identify relevant factors that might complicate their analyses or distort the interpretation of research findings. This article highlights common challenges of multijurisdictional research, including inconsistent use of terminology, differing organizational structures and procedures, and exogenous factors such as court governance, policymaking authority, funding, and local court culture. It also offers guidance to researchers on identifying and integrating these factors …

Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant’s past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. In the usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior. Lawmakers rely on this narrative when they create exceptions. However, this account arguably misses a highly troublesome …

Emerging Technology’S Language Wars: Ai And Criminal Justice, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of Artificial Intelligence systems (AI systems) and criminal justice suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, researchers, lawmakers, software developers, engineers, judges, and the public all talk past each other, using the same words but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal inherent value conflicts embedded in definitional differences and debates. Doing so offers a tool for reconciling specific linguistic ambiguities before they are embedded in …

Religious Convictions, Anna Offit

Faculty Journal Articles and Book Chapters

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

Charging Time, Pamela R. Metzger, Janet C. Hoeffel

Faculty Journal Articles and Book Chapters

On the verge of his 1,000th day in an El Paso, Texas jail, Robert Antonio Castillo was still waiting for a prosecutor to formally charge him with a crime. Mr. Castillo is one of thousands of people across the country who are arrested and jailed for weeks, months, and even years without charges. In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them. Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for …

Emerging Technology’S Language Wars: Cryptocurrency, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency …

The Dead End Of Animus Doctrine, Dale Carpenter

Faculty Journal Articles and Book Chapters

Hatred is as old as our civilization. So is the moral principle that one should not hate others and should not act on such hatred. Concerns that an angry or fearful majority might nevertheless treat people maliciously were present both at the beginning of our constitutional Republic and in its most divided epoch. The very structure of our government—dividing and separating powers—and our most hallowed egalitarian principle—Equal Protection of the Laws—were seen as safeguards against decisions driven by a “bare . . . desire to harm.” Such decisions are blasphemy in our legal heritage. Half a century ago, the Supreme …

Wireless Investors & Apathy Obsolescence, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Journal Articles and Book Chapters

This Article discusses how a subgenre of retail investors makes investors’ apathy obsolete. In prior work, we dub this genre of retail investors “wireless investors” for their reliance on technology and online communications. By applying game theory, this Article discusses how wireless investors’ global-scale online communications allow them to circulate information and coordinate, obliterating collective action problems.

Self-Defense Exceptionalism And The Immunization Of Private Violence, Eric Ruben

Faculty Journal Articles and Book Chapters

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly attention. In recent years, most commentary about self-defense has focused on “Stand Your Ground” policies that remove the duty to retreat before using lethal force. But the reaction to Rittenhouse’s case reflects a different, more extreme way that the law governing defensive force is changing. In particular, advocates and legislators say that private citizens like Rittenhouse who exercise self-defense should be entitled to immunity—an exemption from prosecution—giving them an extraordinary procedural benefit not attaching to other defenses that are adjudicated …

An Era Of Rights Retractions: Dobbs As A Case In Point, Seema Mohapatra

Faculty Journal Articles and Book Chapters

No abstract provided.

Hortatory Mandates, Nathan Cortez, Lindsay F. Wiley

Faculty Journal Articles and Book Chapters

This Article is the first to describe "hortatory mandates" and articulate principles for judicial review. Hortatory mandates are laws whose form and function collide. Either they speak in mandatory terms but lack penalties or enforcement mechanisms, or they speak in hortatory, precatory terms that belie the legal obligations they create. Our analysis of important examples-the

Affordable Care Act, the Clean Air Act, federal dietary guidelines, and COVID-19 mitigation orders-indicates that policymakers regularly deploy hortatory mandates for instrumental reasons rather than purely symbolic or precatory reasons. In matters of public health, environmental protection, and beyond, so-called "soft law" is now a …

Privacy In Modern American Law And Society, Joanna L. Grossman, Lawrence M. Friedman

Faculty Journal Articles and Book Chapters

No abstract provided.

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Journal Articles and Book Chapters

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

The Exclusive Right To Customize?, Mark A. Lemley, Sari Mazzurco

Faculty Journal Articles and Book Chapters

Artists, political commentators, and even multinational corporations are increasingly taking existing branded products and modifying them – sometimes to comment on the underlying product, sometimes to make a political or artistic statement unrelated to that product, sometimes to make them look fancier than they are, and sometimes for their own advertising purposes. As ornamenting and customizing existing products has shifted from a personal hobby to a business model, trademark owners have begun to insist that they have the exclusive right to control the appearance of products associated with them or that prominently bear their logos. We call this assertion a …

Harnessing The Collective Power Of Retail Investors, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Journal Articles and Book Chapters

This book chapter, forthcoming in A Research Agenda for Corporate Law (Christopher M. Bruner & Marc Moore, eds.) (Edward Elgar Publishing), suggests a path forward to harness the collective power of new generations of retail investors. Since 2020, new retail investors have been flooding the securities markets, opening a record-breaking number of new brokerage accounts. The overwhelming majority of these new retail investors are Millennials and GenZ’ers. Due to their increasing fiscal power as well as their generational characteristics and affinities, these new generations of retail investors can shift paradigms in corporate governance and in the relation between business corporations …

The Federal Circuit And The Patent Trial And Appeal Board, David O. Taylor

Faculty Journal Articles and Book Chapters

The U.S. Court of Appeals for the Federal Circuit holds a unique and powerful position in the patent system. It exercises exclusive jurisdiction over appeals in patent cases, which, short of Supreme Court intervention, empowers the court to set national patent law. But since passage of the America Invents Act, at least with respect to resolving often multimillion dollar disputes over patent validity, there is another, more powerful government institution: the Patent Trial and Appeal Board. Given its significant new power over disputes regarding patent validity, the Patent Trial and Appeal Board has been the subject of numerous disputes resolved …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal …

The Incongruence Principle Of Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make …

Russia, Ukraine, And The Challenge Of Wartime Accountability, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

There has been a notable shift in the emerging Russian perspective on international law and international organizations, a trend that began nearly a decade prior to Russia's invasion of Ukraine. Over this period, Russia has made substantial alterations to its laws, constitution, and international commitments, effectively withdrawing from previously accepted legal obligations. Furthermore, Russia has increasingly rejected fundamental international legal norms and principles with growing fervor.

In the keynote remarks delivered during the Texas Tech Law Review 2023 Criminal Law Symposium, the author delves into this significant shift, providing illustrative examples.