Jurisprudence Commons^™

What Machines Can Teach Us About "Confrontation", Andrea Roth

Duquesne Law Review

In this short Article, I argue that treating non-human conveyances of information-and other forms of evidence that cannot be cross-examined-as beyond the Confrontation Clause is unsatisfactory as a matter of text, history, logic, and principle. Instead, all of these clues lead to one conclusion: the right of confrontation is a right not only to physical presence of certain human witnesses to facilitate demeanor review and questioning, but to a meaningful opportunity to scrutinize the government's proof, whatever its form.⁸ That right would include out-of-court discovery of critical contextual information about the evidence, whether or not exculpatory, and a …

The Inscrutability Problem: From First-Generation Forensic Science To Neuroimaging Evidence, Jane Campbell Moriarty

Duquesne Law Review

Expert testimony continues to turn away from human-based skills to embrace machine-based evidence. Technology is used to identify and locate individuals, unlock encrypted devices, and even to evaluate criminal responsibility. Perhaps this is a positive change. The shortcomings of first-generation forensic identification specialties are substantial and include the inscrutability of its subjective comparisons. As such, this newer generation of evidence may well be an improvement. Yet the inscrutability problem adopts many forms. Machine-based evidence relies on hardware, software, algorithms, statistics, and engineering to reach results-ones created and interpreted by humans subject to bias and cognitive error; results the justice system …

Technology - Revealing Or Framing The Truth? A Jurisprudential Debate, Dana Neacsu

Duquesne Law Review

Technology is so much more than a prosthetic. But how much more? And what else is it? In the legal realm, its role is not yet clear. Such a lack of elucidation becomes problematic, especially when technology has the ability to convert assumptions into facts, and it takes on a truth-making, rather than a mere truth-revealing mission. This Article argues that it is problematic to enable technology to stand in for reflective thinking, and calls attention to the fact that evidentiary rules enable technology to decide what can be proven, ergo what truth is.

Considering "Machine Testimony": The Impact Of Facial Recognition Software On Eyewitness Identifications, Valena Beety

Duquesne Law Review

Andrea Roth's seminal work in Machine Testimony and Trial by Machine presented a problem that is now upon us: addressing biased algorithms and the rampant reliance on technology by prosecutors and law enforcement.¹ That reliance, however, is no longer unquestioning. Roth's work came at a crucial moment in time, when other articles were embracing the apparent impartiality of technology and algorithms for use in the criminal legal system. Her scholarship steered us away from that blind acceptance and dove deep, not only questioning technology itself, but also how to frame those questions of technology in the courtroom.

Biometrics And An Ai Bill Of Rights, Margaret Hu

Duquesne Law Review

This Article contends that an informed discussion on an Al Bill of Rights requires grappling with biometric data collection and its integration into emerging Al systems. Biometric Al systems serve a wide range of governmental purposes, including policing, border security and immigration enforcement, and biometric cyberintelligence and biometric-enabled warfare. These systems are increasingly categorized as "high-risk" when deployed in ways that may impact fundamental constitutional rights and human rights. There is growing recognition that high-risk biometric AI systems, such as facial recognition identification, can pose unprecedented challenges to criminal procedure rights. This Article concludes that a failure to recognize these …

Ending Manner-Of-Death Testimony And Other Opinion Determinations Of Crime, Keith A. Findley, Dean A. Strang

Duquesne Law Review

In January 2011, Ellen Greenberg's fianc6 and her apartment building manager broke down her apartment door after she failed repeatedly to respond to attempts to contact her.¹ They found herd ead in a pool of blood on the kitchen floor, the victim of twenty stab wounds to her chest, torso, head, and neck, including stab wounds to the back of her head and to her body through her clothes. They found a half-eaten fruit salad on the kitchen counter along with an overturned knife block. By all appearances, Greenberg was the victim of a grisly murder, and the medical …

On-Screen V. In Person: How A Tech-Savvy World Is Impacting Jurors' Perceptions Of Witnesses, Michael T. Deer

Duquesne Law Review

When speaking to a friend or loved one via video chat, one receives the thrill of seeing that person in real time-without a faceto- face encounter. Video chatting is a popular mechanism in the twenty-first century, as the technology comes in various forms and lives at our fingertips.¹ Whether a family is video chatting with an overseas servicemember during a holiday, a person is attending an online class or work meeting, or someone is seeing his or her doctor by way of a virtual appointment, our notion of "face time" has evolved significantly.² In fact, Merriam-Webster now defines …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

A Call For Transparency In Sports To The Government Of Puerto Rico, Karla V. Aponte

St. Thomas Law Review

Much like a state, Puerto Rico is self-governed, but cannot interfere with federal law. However, sports federations in Puerto Rico are not governed by the existing applicable federal law. Sports federations are avoiding most of the strict regulations imposed by federal acts, mainly because Puerto Rico has its own Olympic identity, and is recognized by the International Olympic Committee as a separate country. As a result, the language on the federal acts has been interpreted to only apply to those organizations representing the United States. Because of this, federations avoid strict auditing procedures, and other regulations, which consequently have deterred …

Court Review: Journal Of The American Judges Association, Vol. 58, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Civil Cases in the Supreme Court’s October Term 2021; Thomas M. Fisher

Threats to Impartiality in Capital Jury Selection: Addressing Dead-Serious Falsifications; Richard Rogers, Eric Y. Drogin, and Sara E. Hartigan

Science-Based Recommendations for the Collection of Eyewitness Identification Evidence; Margaret Bull Kovera, Jacqueline Katzman, Jennifer M. Jones, and Melanie B. Fessinger

Editor’s Note; David J. Dreyer

President’s Column; Yvette Mansfield Alexander

Crossword; Vic Fleming

Thoughts from Canada: Assessing Credibility: The Impact of a Motive to Lie and the Embellishment of Evidence -- the Canadian Approach; Wayne K. Gorman

The Resource Page: Democracy's Last Line of Defense: A …

Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo

Seattle University Law Review

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …

Less Restrictive Alternatives And The Ancillary Restraints Doctrine, Thomas B. Nachbar

Seattle University Law Review

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects.

American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s …

"Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric M. Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

The Institutional Mismatch Of State Civil Courts, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Structural Racism And The Redressing Of Foundational Wrongs, Natsu Taylor Saito

Journal of Race, Gender, and Ethnicity

No abstract provided.

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Journal of Race, Gender, and Ethnicity

No abstract provided.

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Textualism, Dynamism, And The Meaning Of "Sex", Bill Watson

Cardozo Law Review de•novo

A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.

Legal And Market Initiatives To Increase Diversity In Corporations—A Cross-Jurisdictional Analysis, Akshaya Kamalnath

Seattle University Law Review

This Article will critically examine various legal and market initiatives to increase diversity in corporations, with the aim of assessing their effectiveness. The initiatives explored in this Article include quota laws in Europe (including recent amendments in France and Germany which introduce quotas for executive director positions) and California; disclosure laws in the U.S., Nasdaq, and U.K.; and initiatives by institutional investors. The main argument this Article makes is that both quotas and quantitative disclosures do not provide the right incentives for corporations to make genuine efforts to improve diversity. The alternative this Article proposes is not to simply leave …

Zombie Laws, Howard M. Wasserman

Lewis & Clark Law Review

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes …

Step-Parent As Fiduciary, Ruth Zafran

Lewis & Clark Law Review

Does a step-parent have any obligations toward the non-resident legal parent of the child? To date, the law has been silent on this point, and the scholarship has paid little, if any, attention to it. This Article argues that the conceptual framework of fiduciary enables us to recognize, both conceptually and legally, the relationship between the step-parent and the non-resident legal parent (who, generally speaking, spends less time with the child on a day-to-day basis). The aim of this fiduciary duty is to protect the more vulnerable party (in this specific context, the non-resident legal parent) from the more powerful …

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement” through a comparative analysis of the role of the Secretariat within the African Court. Despite the growing …

"A Change Is Gonna Come:" Developing A Liability Framework For Social Media Algorithmic Amplification, Amy B. Cyphert, Jena Martin

Faculty Articles

From the moment social media companies like Facebook were created, they have been largely immune to suits for the actions they take with respect to user content. This is thanks to Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which offers broad immunity to sites for content posted by users. But seemingly the only thing a deeply divided legislature can agree on is that Section 230 must be amended, and soon. Once that immunity is altered, either by Congress or the courts, these companies may be liable for the decisions and actions of their algorithmic recommendation systems, …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

Aggregate Stare Decisis, Kiel Brennan-Marquez

Faculty Articles and Papers

The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate echoing decades of scholarship-about the doctrine's role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect "neutral principles" that run orthogonal to a case's merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits by diagnosing the …

Kyros V. Rhode Island Dep’T Of Health, 253 A.3d 897 (R.I. 2021), Andrew Spaulding

Roger Williams University Law Review

No abstract provided.

Decurtis V. Visconti, Boren & Campbell Ltd., 252 A.3d 765 (R.I. 2021), Alexus Bonilla

Roger Williams University Law Review

No abstract provided.