Beyond Unreasonable,
2020
Washington University in St. Louis School of Law
Beyond Unreasonable, John D. Inazu
Scholarship@WashULaw
The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to reach conclusions “beyond a reasonable doubt,” and claims of self-defense succeed or fail on reasonableness determinations. But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale—we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting …
Taking Stock Of The Religion Clauses,
2020
Washington University in St. Louis School of Law
Taking Stock Of The Religion Clauses, John D. Inazu
Scholarship@WashULaw
After a few decades of relative quiet, the Supreme Court has in recent years focused once again on the religion clauses and related statutes.
Virtual Access: A New Framework For Disability And Human Flourishing In An Online World,
2020
Washington University in St. Louis School of Law
Virtual Access: A New Framework For Disability And Human Flourishing In An Online World, John D. Inazu, Johanna Smith
Scholarship@WashULaw
While many commentators have noted the wealth and class disparities that emerge from the digital divide, disability adds another important lens through which to consider questions of access and equity. Online accessibility for disabled people has fallen prey to the same assumptions and impediments that led to the Americans with Disabilities Act (“ADA”) addressing disability access in the offline world. Addressing these shortcomings requires a significant conceptual shift in our understanding of “access,” even among disabled people. Offline, the sidewalk or doorway hindered access to those who needed assistance walking or moving. Today’s virtual sidewalks and doorways complicate access in …
Financial Freedom Suits: Bankruptcy, Race, And Citizenship In Antebellum America,
2020
Washington University in St. Louis School of Law
Financial Freedom Suits: Bankruptcy, Race, And Citizenship In Antebellum America, Rafael I. Pardo
Scholarship@WashULaw
This Article presents a new frame of reference for thinking about how the federal government facilitated citizenship claims by free people of color in the antebellum United States. While scholars have accounted for various ways in which free black litigants may have made such claims, they have not considered how the Bankruptcy Act of 1841 enabled overindebted free people of color to reconstruct their economic lives, thereby restoring the financial freedom that was and continues to be an essential component of American citizenship. Relying on a variety of primary sources, including manuscript court records, this Article shows how six free …
Manipulating Opportunity,
2020
Washington University in St. Louis School of Law
Manipulating Opportunity, Pauline Kim
Scholarship@WashULaw
Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When predictive algorithms are used to allocate information about opportunities like employment, housing, and credit, they can reproduce past patterns of discrimination and exclusion in these markets. This Article explores these issues by focusing on the labor market, which is increasingly dominated by tech intermediaries. These platforms rely on predictive algorithms to distribute information about job openings, match job seekers with hiring firms, or recruit …
The Good Lawyer: State-Led Professional Socialization In Contemporary China,
2020
Washington University in St. Louis School of Law
The Good Lawyer: State-Led Professional Socialization In Contemporary China, Lawrence J. Liu, Rachel E. Stern
Scholarship@WashULaw
How do authoritarian states define and communicate notions of appropriate work conduct and professional excellence? This article examines three channels of communication used by the Chinese state to signal professional expectations to the bar: the bar exam, the administrative rules governing lawyers, and the state-sanctioned National Outstanding Lawyer Award. We find that China’s state narrative about “the good lawyer” celebrates lawyers willing to work closely with the authorities and asks more stringent critics to separate private beliefs from public behavior. In contrast to assumptions often made in research on authoritarian law, this article highlights how lawyers can participate in politics …
In The Shadow Of Shular: Conduct Can Unify The Disjointed Categorical Approaches,
2020
Washington University in St. Louis School of Law
In The Shadow Of Shular: Conduct Can Unify The Disjointed Categorical Approaches, Sheldon Evans
Scholarship@WashULaw
The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing …
Privacy's Constitutional Moment And The Limits Of Data Protection,
2020
Washington University in St. Louis School of Law
Privacy's Constitutional Moment And The Limits Of Data Protection, Neil M. Richards, Woodrow Hartzog
Scholarship@WashULaw
America’s privacy bill has come due. Since the dawn of the Internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for Fair Information Processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seemed poised to blanket the country with FIP-based laws if Congress fails to act. The United States is thus in the midst …
The Invalidation Of The Eu-Us Privacy Shield And The Future Of Transatlantic Data Flows: Testimony Of Professor Neil Richards Before The United States Senate,
2020
Washington University in St. Louis School of Law
The Invalidation Of The Eu-Us Privacy Shield And The Future Of Transatlantic Data Flows: Testimony Of Professor Neil Richards Before The United States Senate, Neil M. Richards
Scholarship@WashULaw
This is the prepared testimony and statement for the records, including responses to questions for the record of Professor Neil Richards before the United States Senate Commerce Committee on December 9, 2020. The testimony explains that while Congress has failed to pass a comprehensive privacy bill despite many opportunities, the judgment of the European Court of Justice in Data Protection Commissioner v. Facebook, (commonly known as “Schrems 2”) represents a real opportunity for it to do just that in the near future. The testimony argues first that Congress should not just pass a comprehensive privacy bill, but one that gets …
Welcome To Cordell Perspectives,
2020
Washington University in St. Louis School of Law
Welcome To Cordell Perspectives, Neil M. Richards, Jonathan W. Heusel
Scholarship@WashULaw
The world around us is changing. Let’s talk about it together. Introducing a series of articles and opinions by the world’s leading experts concerning COVID-19 as it relates to precision medicine and data privacy: Welcome to Cordell Perspectives.
Global Investor-Director Survey On Climate Risk Management,
2020
Washington University in St. Louis School of Law
Global Investor-Director Survey On Climate Risk Management, Jens Frankenreiter, Kristin Bresnahan, Sophie L'Helias, Brea Hinricks, Nina Hodzic, Julian Nyarko, Sneha Pandya, Eric Talley
Scholarship@WashULaw
Changes in the global climate are having profound impacts on business operations, governance, and organizational management around the world. Boards of directors are searching for ways to account for these changes as they help guide their organizations, and investors are increasingly concerned about how these changes might impact their portfolios. This global survey, conducted by a team of researchers at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and experts at LeaderXXchange, seeks to understand how — if at all — institutional investors and board directors incorporate climate-related issues in their investment decision …
Copyright And Economic Viability: Evidence From The Music Industry,
2020
Washington University in St. Louis School of Law
Copyright And Economic Viability: Evidence From The Music Industry, James Hicks, Kristelia García, Justin Mccrary
Scholarship@WashULaw
Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major creative industry—commercial music—using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life—on the order of months, rather than years or decades—but also see evidence that subscription streaming services extend the …
What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure,
2020
Washington University in St. Louis School of Law
What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure, Trevor George Gardner
Scholarship@WashULaw
Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian …
Telling The Story Of Justice Sandra Day O'Connor,
2020
Washington University in St. Louis School of Law
Telling The Story Of Justice Sandra Day O'Connor, Susan Frelich Appleton
Scholarship@WashULaw
Appearing as part of the WASHINGTON UNIVERSITY JOURNAL OF LAW and POLICY’s celebration of the sesquicentennial of the first women law students, this brief review critically examines FIRST: SANDRA DAY O’CONNOR, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. (A shorter version of the review appeared under the title How One Glass Ceiling Was Broken, COMMON READER (Nov. 20, 2019).
Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits,
2020
Washington University School of Law in St Louis
Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits, Adrienne D. Davis
Scholarship@WashULaw
This Article highlights the importance of using both popular culture references and fictional show characters as mediums for teaching courses on Trusts and Estates. Utilizing post-mortem intimacy audits, specifically through pop culture pedagogical hypotheticals and case studies, Professor Davis highlights the importance of understanding doctrines within Trusts and Estates Law. Focusing on the examples of Shaquille O’Neal and Strom Thurmond, this Article highlights three important lessons for students: the fragility of estate planning, the effects of individual estate planning on groups’ broader wealth and political equality, and the role of private law in distributing legal rights and political equality.
What’S Wrong With Police Unions?,
2020
Washington University in St. Louis School of Law
What’S Wrong With Police Unions?, Benjamin Levin
Scholarship@WashULaw
In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …
Criminal Law In Crisis,
2020
Washington University in St. Louis School of Law
Criminal Law In Crisis, Benjamin Levin
Scholarship@WashULaw
In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …
Categorical Nonuniformity,
2020
Washington University in St. Louis School of Law
Categorical Nonuniformity, Sheldon Evans
Scholarship@WashULaw
The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …
The Future Of Space Governance,
2020
Washington University in St. Louis School of Law
The Future Of Space Governance, Melissa (M.J.) Durkee
Scholarship@WashULaw
Fifty years after the first moonwalk, the prospect for a new set of multilateral agreements governing outer space is remote, yet the legal questions raised by activity in space are mounting. With little prospect of new treaties, nations will need to make do with existing treaty law, generate customary rules to govern new applications, or develop forms of sub-legal understanding and cooperation. This special conference issue of the Georgia Journal of International and Comparative Law addresses these questions.
A Relational Turn For Data Protection?,
2020
Washington University in St. Louis School of Law
A Relational Turn For Data Protection?, Neil M. Richards, Woodrow Hartzog
Scholarship@WashULaw
While most approaches to privacy and data protection focus on the data, this paper explores an alternative approach that focuses on relationships. This means looking more closely at how the people who are exposing their information and the people that are inviting that disclosure relate to each other. It is concerned with what powerful parties owe to vulnerable parties–not just with their personal information, but with the things they see, the things they can click, and the decisions that are made about them. It’s less about the nature of data and more about the nature of power. And it can …
