Social and Behavioral Sciences Commons^™

The Persistence Of Memory: The Continuing Influence Of Antebellum Missouri Laws Regarding African Americans, Roy Dripps

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Service Within And Beyond Our Walls, Mary Whisner

Librarians' Articles

With the growth of the Internet, the typical patron base that reference librarians serve has increased to a much wider group of people who use various electronic means of communication to seek assistance. Ms. Whisner examines how technology has expanded these service borders and discusses the ramifications for the modern reference librarian.

Making News: Balancing Newsworthiness And Privacy In The Age Of Algorithms, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

In deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making.

Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write …

Laws, Norms, And The Institutional Analysis And Development Framework, Daniel H. Cole

Articles by Maurer Faculty

Elinor Ostrom’s Institutional Analysis and Development (IAD) framework has been described as ‘one of the most developed and sophisticated attempts to use institutional and stakeholder assessment in order to link theory and practice, analysis and policy’. But not all elements in the framework are sufficiently well developed. This paper focuses on one such element: the ‘rules-in-use’ (a.k.a. ‘rules’ or ‘working rules’). Specifically, it begins a long-overdue conversation about relations between formal legal rules and ‘working rules’ by offering a tentative and very simple typology of relations. Type 1: Some formal legal rules equal or approximate the working rules; Type 2: …

President Trump, Trade Policy, And American Grand Strategy: From Common Advantage To Collective Carnage, David P. Fidler

Articles by Maurer Faculty

As a candidate for president of the United States, Donald J. Trump promised to abandon longstanding U.S. approaches to trade and pursue strategies anchored in protectionism and nationalism. This article examines President Trump’s trade policy ideas and proposals and highlights the extent to which he intends to disrupt traditions of U.S. policymaking on trade. The article also analyzes whether domestic and international politics might shift the Trump administration away from a radical approach back towards trade policies that approximate how the United States has managed trade for decades. If such a shift does not occur, the Trump administration’s trade policy …

Book Review, When Police Kill By Franklin E. Zimring (2017), Andrew J. Christensen

Library Scholarship

When Police Kill is a must-have for any academic law library collection and a strong candidate for the shelves of government and court libraries. The book is a compelling example of the value of the growing empirical and current-event-analysis trends in legal scholarship, relying on open source statistics, news accounts, and crowdsourced efforts both to inform potentially fraught dialogue and advance new public policy approaches. Research librarians, who may increasingly find themselves tapped to assist with or manage such projects, should look to When Police Kill for information, as well as inspiration, about how a diverse and data-driven study can …

The Middle Class, Urban Schools, And Choice, Michael Lewyn

Scholarly Works

It is common knowledge that middle- and upper-class parents tend to disfavor urban public schools, and often move to suburbs in order to avoid having to send their children to those schools. Thus, the condition of urban public schools contributes to suburban sprawl- that is, the movement of people and jobs from city to suburb.  This article discusses a variety of possible solutions to the unpopularity of urban schools among middle-class parents.  Part I of the Article suggests that this problem is a cause as well as a result of middle-class flight: that is, urban schools have poor reputations because …

Today's Challenges To Religious Liberty In Historical Perspective, Gerard V. Bradley

Journal Articles

From the Introduction

Many people say that religious liberty in our country is now under attack more than ever before. That's true as far as it goes, and in what follows I shall supply some reasons why I think so. But the chief aim of this Article is not to try to establish that religious liberty is in its most parlous state ever, as if some common threat-level metric is higher today than it was, say, a hundred or fifty years ago. As a matter of fact, Mormons and Native Americans in the late-nineteenth century faced government actions more hostile …

Blown To Bits Project, David Schmidt

Informatics Open Educational Resources

The book, Blown to Bits, uncovers the many ways that the new digital world has changed and is changing our whole environment. Some changes are incremental but others are more revolutionary. Some of the changes that we welcome are slowly eroding our privacy and are changing the rules of ownership. This book illuminates the complexities of these changes. I have attempted to capture the central points in selected chapters, and in some cases I have added new material or new examples to replace dated material. I picked chapters to summarize that address the following topics (and more). There are many …

The Justified Lawman: Cowboy Killings In The Modern Era, Joel Franklin Harman

Online Theses and Dissertations

Stereotypes advanced by the popular media, do not necessarily have the power to directly determine an individual's ways of thinking, but do help frame and reinforce already existing cultural beliefs, particularly within the context of the seemingly innocuous narrative fictions of cable television. These narratives not only simplify complex ideas, but also can further entrench or justify harmful social relations. My contention here, is that the popular television program Justified does precisely this by normalizing police violence and the ways that the police underpin and reproduce profoundly disparate class and racialized social order. While in many ways a typical police …

Astroturf Activism, Melissa (M.J.) Durkee

Scholarship@WashULaw

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

The Limits Of Gatekeeper Liability, Andrew F. Tuch

Scholarship@WashULaw

Gatekeeper liability – the framework under which actors such as law firms, investment banks and accountants face liability for the wrongs committed by their corporate clients – is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces well-recognized flaws: gatekeepers often depend financially on the clients whose conduct they monitor; to carry out their gatekeeping function, gatekeepers rely on individuals – often their employees – whose interests diverge from their own; and major transactions typically involve multiple gatekeepers, each with specific areas of expertise and information, which produces both gaps and overlaps in the gatekeeping …

Privacy's Trust Gap: A Review, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

It can be easy to get depressed about the state of privacy these days. In an age of networked digital information, many of us feel disempowered by the various governments, companies, and criminals trying to peer into our lives to collect our digital data trails. When so much is in flux, the way we think about an issue matters a great deal. Yet while new technologies abound, our ideas and thinking — as well as our laws — have lagged in grappling with the new problems raised by the digital revolution. In their important new book, Obfuscation: A User’s Guide …

A Judge's Duty To Do Justice: Ensuring The Accused's Right To The Effective Assistance Of Counsel, Peter A. Joy

Scholarship@WashULaw

Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice.

I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads …

Data-Driven Discrimination At Work, Pauline Kim

Scholarship@WashULaw

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Auditing Algorithms For Discrimination, Pauline Kim

Scholarship@WashULaw

This Essay responds to the argument by Joshua Kroll, et al., in Accountable Algorithms, 165 U.PA.L.REV. 633 (2017), that technical tools can be more effective in ensuring the fairness of algorithms than insisting on transparency. When it comes to combating discrimination, technical tools alone will not be able to prevent discriminatory outcomes. Because the causes of bias often lie, not in the code, but in broader social processes, techniques like randomization or predefining constraints on the decision-process cannot guarantee the absence of bias. Even the most carefully designed systems may inadvertently encode preexisting prejudices or reflect structural bias. For this …

Industry Lobbying And 'Interest Blind' Access Norms At International Organizations, Melissa (M.J.) Durkee

Scholarship@WashULaw

The standard approach of many international organizations (IOs) to non-governmental associations makes no formal distinctions between nonprofit private sector groups, known as trade or industry associations, and public interest groups. Thus, most IOs offer accreditation and access to both kinds of group on equal terms, without differentiating between them. I call this approach “interest blind” and use this short essay to examine its origins and consequences. Specifically, the approach has resulted in robust participation in international governance by industry and trade lobbying groups, which can affect the quality of deliberation at IOs and of the information that international officials and …

Introduction To Symposium On Industry Associations In Transnational Legal Ordering, Melissa (M.J.) Durkee, Gregory Shaffer

Scholarship@WashULaw

As globalization blurs borders and business operates across them, industry associations transpose their political activities to the global level, organizing transnationally, pursuing new sites of influence, and seeking harmonization. Their efforts affect the content of international legal norms, both public and private. This short essay introduces a symposium issue of AJIL Unbound that addresses the roles and mechanisms through which industry associations influence and shape law as part of transnational legal processes, potentially giving rise to transnational legal orders.

The Third-Party Doctrine And The Future Of The Cloud, Neil M. Richards

Scholarship@WashULaw

When the government seeks electronic documents held in the cloud, what legal standard should apply? This simple question raises fundamental questions about the future of our civil liberties in the digital world. In a series of cases, government lawyers have argued that information shared with digital intermediaries—including emails and cloud-stored documents—can be seized without a warrant. Their argument rests upon a controversial Fourth Amendment principle known as the “Third-Party Doctrine,” which maintains that information shared even with trusted “third parties” loses a reasonable expectation of privacy under the Fourth Amendment, and with it, the protection of the warrant requirement. Criminal …

Secret Government Searches And Digital Civil Liberties, Neil M. Richards

Scholarship@WashULaw

In Secret Government Searches and Digital Civil Liberties, Neil Richards tackles the issue of what he describes as “secret government searches”—namely, examples of government surveillance that remain a secret to the search target. These can be physical or digital, carried out with a warrant or without, and unknown to everyone but the government or facilitated by a private company that is prohibited from notifying the target. Richards places these secret searches in historical, technological, and constitutional context and argues that they are unprecedented, historically and technologically, and inconsistent with key constitutional values, including freedom of thought, freedom of expression, and …

Trusting Big Data Research, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Although it might puzzle or even infuriate data scientists, suspicion about big data is understandable. The concept doesn’t seem promising to most people. It seems scary. This is partly because big data research is shrouded in mystery. People are unsure about organizations’ motives and methods. What do companies think they know about us? Are they keeping their insights safe from hackers? Are they selling their insights to unscrupulous parties? Most importantly, do organizations use our personal information against us? Big data research will only overcome its suspicious reputation when people can trust it.

Some scholars and commentators have proposed review …

Unlawful Assembly As Social Control, John D. Inazu

Scholarship@WashULaw

Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start …

Aggressive Encounters & White Fragility: Deconstructing The Trope Of The Angry Black Woman, Kimberly Jade Norwood, Trina Jones

Scholarship@WashULaw

Black women in the United States are the frequent targets of bias-filled interactions in which aggressors: (1) denigrate Black women; and (2) blame those women who elect to challenge the aggressor’s acts and the bias that fuels them. This Article seeks to raise awareness of these “aggressive encounters” and to challenge a prevailing narrative about Black women and anger. It examines the myriad circumstances (both professional and social) in which aggressive encounters occur and the ways in which these encounters expose gender and racial hierarchies. It then explores how the intersectional nature of Black women’s identities triggers a particularized stereotype …

Peyote And Ghouls In The Night: Justice Scalia's Religion Clause Minimalism, John D. Inazu

Scholarship@WashULaw

The late Justice Antonin Scalia held a minimalist view of the religion clauses: the Free Exercise Clause does not protect against neutral laws of general applicability, and the Establishment Clause prohibits neither longstanding traditional practices nor legislative acts with a plausible secular purpose. In both free exercise and establishment cases, Scalia resisted judicial second-guessing of legislative judgments unless he saw an explicit singling out of religious practice. Yet Scalia had an uneven influence on religion clause jurisprudence. When it came to the Free Exercise Clause, he played a pivotal role in shaping a doctrinal framework that has arguably created more …

The Politics Of Citations At The Ecj: Policy Preferences Of E.U. Member State Governments And The Citation Behavior Of Judges At The European Court Of Justice, Jens Frankenreiter

Scholarship@WashULaw

This paper investigates the relationship between the political preferences of EU Member States and the behavior of judges at the European Court of Justice (ECJ) by analyzing their citation behavior. It shows that judges at the ECJ are more likely to cite judgments authored by judges appointed by Member State governments with similar preferences regarding European integration. Analogous with the context of U.S. courts, non-random opinion assignment potentially threatens the validity of these results. To overcome this problem, I exploit the unique institutional setting at the ECJ to develop an improved identification strategy which builds on comparing the citations in …

Business Income And Business Taxation In The United States Since The 1950s, Conor Clarke, Wojciech Kopczuk

Scholarship@WashULaw

In theory, the U.S. tax system aims to attribute and tax all business income to individuals. But the tax treatment of this income varies. Pass-through income is taxed when earned; capital-gains income is taxed when realized; dividends when distributed; other forms of business income may escape taxation entirely. Business owners often have control over the timing and character of their income: They can often choose, for example, between reporting business income or deducting it as wages or fringe benefits. And laws change, changing the incentive and ability to shift income between the individual and corporate sectors.We integrate a wide variety …

Universal Clinical Legal Education: Necessary And Feasible, Robert R. Kuehn

Scholarship@WashULaw

Although bar officials and most legal educators agree that law students need to learn not just to “think like a lawyer” but also the professional skills needed to “do like a lawyer,” legal education lags far behind other professions in the clinical training it provides its graduates. The justification usually given for such lack of training is the claim that it is not financially feasible for law schools to ensure that every student graduate with a clinical experience. This Essay challenges this mistaken justification. It first summarizes the numerous reports and studies showing the need for clinical training for law …

Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn

Scholarship@WashULaw

Allegations of bias in administrative environmental decisions are common and seemingly increasing because of the significant economic and political interests in many disputes. From high profile national oil spills to local land use matters, parties to environmental proceedings allege conflicts of interest, favoritism, prejudgment of outcomes, comingling of prosecutorial and adjudicatory functions, ex parte communications, and improper political influence. Where bias occurs, it can significantly impact the implementation and enforcement of environmental laws. Biased proceedings can undermine the goals of environmental laws by causing prejudiced decisions not grounded in law or fact, ultimately harming public health and the environment. The …

Aba Standard 405(C): Two Steps Forward And One Step Back For Legal Education, Peter A. Joy

Scholarship@WashULaw

There has long been opposition to guaranteeing that all full-time law faculty have security of position and participation in faculty governance the same as or substantially similar to tenure. ABA Accreditation Standard 405(c), was meant to provide such security of position and faculty governance for clinical faculty, though this standard has not been consistently interpreted to do so. The situation for legal writing faculty is even more precarious, because the standards only require a law school to provide legal writing faculty with the security of position and other rights necessary to attract and retain well-qualified faculty. As a result, most …

Inequality And The Mortgage Interest Deduction, Kyle Rozema, Daniel J. Hemel

Scholarship@WashULaw

The mortgage interest deduction is often criticized for contributing to after-tax income inequality. Yet the effects of the mortgage interest deduction on income inequality are more nuanced than the conventional wisdom would suggest. We show that the mortgage interest deduction causes high-income households (i.e., those in the top 10% and top 1%) to bear a larger share of the total tax burden than they would if the deduction were repealed. We further show that the effect of the mortgage interest deduction on income inequality is highly sensitive to the alternative scenario against which the deduction is evaluated. These findings demonstrate …