Legal Studies Commons^™

Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards

Scholarship@WashULaw

Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont …

A Confident Pluralism, John D. Inazu

Scholarship@WashULaw

The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state …

Institutions In Context, John D. Inazu

Scholarship@WashULaw

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to …

"If You Is White, You's Alright....": Stories About Colorism In America, Kimberly Jade Norwood

Scholarship@WashULaw

This Article examines the inefficiencies of Missouri municipal courts that came into sharp focus following the killing of Michael Brown by Officer Darren Wilson in Ferguson, Missouri. Norwood details and expands on her lone dissent in the Final Report of the Municipal Division Work Group—a group created by the Missouri Supreme Court to address the alleged abuses of black and poor residents in Missouri. Norwood argues for consolidating failing municipal courts to create larger, more functional, and just courts.

‪Measuring The Effects Of Legal Precedent In Us Federal Courts‬, Jens Frankenreiter, Daniel L. Chen, Susan Yeh

Scholarship@WashULaw

Using data for 2000-2004, our results suggest that new precedent has a strong effect on district court judges’ decision standards. Results are stronger when we focus on decisions in the same area of law. Extending the data to 2012, our results get blurred or even change direction.

Regulating Sex Work: Assimilation, Erotic Exceptionalism & Beyond, Adrienne D. Davis

Women, Gender & Sexuality Studies Faculty Research

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This paper, instead, looks at debates within the pro-sex work camp, uncovering some unattended tensions and contradictions. It shows that, within this camp, some stress the labor aspect, urging that sex markets perpetuate a "vulnerable population" of workers, similar to others who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more anti-regulatory stance. They exceptionalize this form of labor, arguing that because …

The Undue Hardship Thicket: On Access To Justice, Procedural Noncompliance, And Pollutive Litigation In Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

This Article offers new insights into understanding the complexities and costs of the litigation burden that Congress has imposed on debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that necessitates litigation as the path for obtaining certain types of bankruptcy relief, this Article focuses on the particular example of debtors who seek to discharge their student loans in bankruptcy. Such debt may be discharged only if the debtor can establish through a full-blown lawsuit that repaying the loans would impose an undue hardship. The procedure and burdens of proof governing …

The Self-Regulation Of Investment Bankers, Andrew F. Tuch

Scholarship@WashULaw

As broker-dealers, investment bankers must register with the Financial Industry Regulatory Authority (“FINRA”) and comply with its rules, including the requirement to “observe high standards of commercial honor and just and equitable principles of trade.” As the self-regulatory body for broker-dealers, FINRA functions as the equivalent of the self-regulatory bodies governing other professionals, such as lawyers and accountants. Unlike the self-regulation of these professionals, however, the self-regulation of investment bankers has thus far attracted scant scholarly attention.

This Article evaluates the effectiveness of this self-regulatory system in deterring investment bankers’ misconduct. Based on a hand-collected data set of every disciplinary …

Four Privacy Myths, Neil M. Richards

Scholarship@WashULaw

Any discussion about privacy today inevitably confronts a series of common arguments about the futility of privacy in our digital age. "Privacy is Dead," we hear, and "people (especially young ones) don’t care about privacy." What’s more, privacy just protects bad behavior because those of us with "nothing to hide have nothing to fear." And anyway, the argument goes, new privacy laws would be bad policy since "privacy is bad for business."

There are other common claims, but these four are perhaps the most common. They are also myths, and in this essay I show why. First, privacy can’t be …

Intellectual Freedom And Privacy, Neil M. Richards, Joanna Cornwell

Scholarship@WashULaw

This essay offers an account of the complex ways intellectual freedom and privacy are interrelated. We pay particular attention to both the constitutional dimensions of these important values, as well as the important roles that social and professional norms play in their protection in practice. Our examination of these issues is divided into three parts. Part I lays out the law and legal theory governing privacy as it relates to intellectual freedom. Part II examines a special context in which law and professional norms operate together to protect intellectual freedom through privacy–the library. Finally, Part III discusses how government actions …

More Is More: Strengthening Free Exercise, Speech, And Association, John D. Inazu

Scholarship@WashULaw

Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests. Philip Hamburger has asserted the argument most forcefully. His generalized worry is that expanding the coverage of First Amendment rights can shift absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights. In Hamburger’s words, “more is less.” We can think of cautions like these as arguments for rights confinement. On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly. But the interplay between doctrine and …

The Far-Reaching Shadow Cast By Ferguson, Kimberly Jade Norwood

Scholarship@WashULaw

In the Dred Scott case, Justice Taney remarked that black people “had no rights which the white man was bound to respect.” In The Far-Reaching Shadow Cast by Ferguson, Professor Norwood questions whether, in today’s society, Justice Taney’s sentiment still holds true. Citing examples of recent police shootings and beatings of unarmed African-Americans and personal and family experiences, Professor Norwood argues that our country is broken and needs fixing. Professor Norwood concludes that we are not the ‘post-racial’ society we claim to be and that the Michael Brown shooting, among others, provides a watershed moment to confront our country’s underlying …

The Uneasy Case Against Auer And Seminole Rock, Conor Clarke

Scholarship@WashULaw

The deference regimes of Auer and Seminole Rock give an agency's interpretation of its own regulation "controlling weight unless [the interpretation] is plainly erroneous or inconsistent with the regulation." This doctrine has long been criticized for giving agencies an incentive to promulgate vague regulations. In this essay I critically review these objections to Auer and Seminole Rock against the backdrop of plausible alternative regimes and recent developments in the lower courts.

Law Schools And The Legal Profession: A Way Forward, Peter A. Joy

Scholarship@WashULaw

Publicity about law schools for the past several years has been consistently bad. In news article after news article, the unifying theme has been that that there are too many lawyers, too many law schools, and that going to law school for a legal career is either a costly, risky proposition or simply a bad idea.' Of course, these laments about the legal education and the legal profession stem from the decline in the employment for lawyers in the United States since the financial crisis of 2008. While some see this simply as a mismatch in supply and demand - …

Pricing Clinical Legal Education, Robert R. Kuehn

Scholarship@WashULaw

Some blame the cost of clinical legal education for high law school tuition. They argue that, regardless of the educational and employment benefits to students, clinical legal education, and law clinics in particular, are too expensive to expand or require for all students in a time of decreasing law school enrollments and revenues. This Article is an empirical examination of these claims. Reviewing tuition, curricular and enrollment data from all law schools, this Article demonstrates that 84% of law schools already have the capacity to provide a clinical experience to every student without adding courses or faculty, although only 18% …

Revisiting The Influence Of Law Clerks On The U.S. Supreme Court's Agenda-Setting Process, Christina L. Boyd, Ryan C. Black, Amanda C. Bryan

Scholarship@WashULaw

Do law clerks influence U.S. Supreme Court Justices’ decisions in the Court’s agenda-setting stage? For those Justices responding to their own law clerks’ cert recommendations, we expect a high degree of agreement between Justice and clerk. For non-employing Justices, however, we anticipate that the likelihood of agreement between clerk and Justice will vary greatly based on the interplay among the ideological compatibility between a Justice and the clerk, the underlying certworthiness of the petition for review, and the clerk’s final recommendation. Relying on a newly collected dataset of petitions making the Court’s discuss list over the 1986 through 1993 Terms, …

Racial Profiling As Collective Definition, Trevor George Gardner

Scholarship@WashULaw

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Scholarship@WashULaw

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Financial Conglomerates And Information Barriers, Andrew F. Tuch

Scholarship@WashULaw

The organizational structure of financial conglomerates gives rise to fundamental regulatory challenges. Legally, the structure subjects firms to multiple, incompatible client duties. Practically, the structure provides firms with a huge reservoir of non-public information that they may use to further their self-interests, potentially harming clients and third parties. The primary regulatory response to these challenges and a core feature of the financial regulatory architecture is the information barrier or Chinese wall. Rather than examine measures to strengthen information barriers, to date legal scholars have focused on the circumstances in which to deny them legal effect, while economists have focused on …

Big Data Ethics, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

We are on the cusp of a “Big Data” Revolution, in which increasingly large datasets are mined for important predictions and often surprising insights. The predictions and decisions this revolution will enable will transform our society in ways comparable to the Industrial Revolution. We are now at a critical moment; big data uses today will be sticky and will settle both default norms and public notions of what is “no big deal” regarding big data predictions for years to come.

In this paper, we argue that big data, broadly defined, is producing increased powers of institutional awareness and power that …

The Four Freedoms And The Future Of Religious Liberty, John D. Inazu

Scholarship@WashULaw

The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct. Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty. The connections among these rights were evident at the Framing. They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.” We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis. It did not have to be …

Implicit Bias Deserves Our Explicit Attention, Kimberly Jade Norwood

Scholarship@WashULaw

What are implicit biases? In brief, we all walk around with two sets of attitudes and beliefs: our conscious (explicit) attitudes and our unconscious (implicit) attitudes. Scientists believe that human consciousness takes up approximately 10 percent of our brain activity. That means that for most things, our unconscious mind is doing the work. Implicit biases exist within our unconscious mind. Our brains are bombarded with millions of bits of information every second. To avoid overload, our brains automatically categorize information into schemas that we use to guide us in our everyday living.

Merging And Dissolving Special Districts, Conor Clarke

Scholarship@WashULaw

Special district governments exist in every state, providing services ranging from protection against fire to protection against fire ants. These governments are easy to form, but often they are difficult to dissolve or consolidate. Nevertheless, in many states, the number of special district governments is declining. This Comment draws on statistical analyses and interviews with government officials to explain the cause of this decline. It also discusses how existing legal frameworks may be revised to facilitate the efficient consolidation and dissolution of special district governments.

Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke

Scholarship@WashULaw

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Watching The Watchers, Neil M. Richards

Scholarship@WashULaw

In this essay from Wired Magazine (UK)'s special edition, The Wired World in 2014, Prof. Richards argues that sousveillance–watching the watchers–is an important development that will be on the rise in 2014.

Persuasion Treaties, Melissa (M.J.) Durkee

Scholarship@WashULaw

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Scholarship@WashULaw

In an effort to re-examine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue non-state actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities …

The Dangers Of Surveillance, Neil M. Richards

Scholarship@WashULaw

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our culture is full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices have made this problem more urgent. Although we have …

Keep Your Update To Yourself, Neil M. Richards

Scholarship@WashULaw

An essay from Wired Magazine (UK)'s special edition, The Wired World in 2013. The essay makes the argument that frictionless sharing of reading habits should decline in 2013.