Legal Studies Commons^™

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …

Chaos Criminology: A Critical Inquiry, Adrienne Leigh Mccarthy

Online Theses and Dissertations

There has been a push since the early 1980’s for a paradigm shift in criminology from a Newtonian-based ontology to one of quantum physics. Primarily this effort has taken the form of integrating Chaos Theory into Criminology into what this thesis calls ‘Chaos Criminology’. However, with the melding of any two fields, terms and concepts need to be translated properly, which has yet to be done. In addition to proving a translation between fields, this thesis also uses a set of criteria to evaluate the effectiveness of the current use of Chaos Theory in Criminology. While the results of the …

Anonymity, Cybercrime, And The Connection To Cryptocurrency, Jesse D. Bray

Online Theses and Dissertations

Cybercrime currently poses a significant threat to the infrastructure of the United States. It can exploit vulnerabilities within the Critical Infrastructure or (CI) systems that are increasingly interconnected. Although the increased interconnectedness allows for easier and more efficient communication it creates vulnerabilities that did not exist ten years ago. A lack of a standardized definition of cybercrime has made it increasingly difficult to create policy that will allow for more efficient interagency cooperation and concrete laws regarding cybercrime. Cybercrime thrives on the anonymity of the Internet with the use of specific browsers, The Onion Router for example, to access information …

A Mediacentric Examination Of The Corporate Psychopath, Pamela Martha Brooks

Online Theses and Dissertations

The psychopathic personality disorder is an extraordinarily complex and multidimensional phenomenon. While its study has primarily focused on criminal and forensic populations, many researchers are broadening the scope of psychopathy research to include those in the corporate world. This, after striking similarities were revealed between the personalities of corporate leaders and clinically diagnosed psychopaths. One profession that may be attractive to psychopathic personalities is the media, specifically television and radio. This exploratory study utilized a blend of original and archival data. Calculated effect sizes were used to examine the existence of personality facets among three groups of media professionals and …

Carving A New Notch In The Bible Belt: Rescuing The Women Of Kentucky, Molly Dunn

Online Theses and Dissertations

In recent years, the trafficking of women and girls for sexual exploitation has become a major focus on the local, national, and global level. This is despite research, which has identified labor trafficking to be a significantly larger issue across the globe. The purpose of this research is to identify how human trafficking has come to be defined in Kentucky by examining how prominent local actors guide the state’s anti-trafficking movement. Through interactions with non-profit organizations, law enforcement, and concerned citizens, factors and forces that may shape the public’s conception of human trafficking were examined. While the stated goal of …

How Should The Law Think About Robots?, Neil M. Richards, William D. Smart

Scholarship@WashULaw

The robots are coming. We don’t mean this in a scary, apocalyptic way, like in The Terminator or Battlestar Galactica, or in a tongue-in-cheek way, like in the Flight of the Conchords song “The Humans are Dead.” What we mean is this: Robots and robotic technologies are now mature enough to leave the research lab and come to the consumer market in large numbers. These early technologies are just the start, and we might soon be witnessing a personal robotics revolution. These systems have the potential to revolutionize our daily lives and to transform our world in ways even more …

Representation On The Courts? The Effects Of Trial Judges' Sex And Race, Christina L. Boyd

Scholarship@WashULaw

Scholars have long sought to resolve whether and to what degree political actor diversity influences the outputs of political institutions like legislatures, administrative agencies, and courts. When it comes to the judiciary, diverse judges may greatly affect outcomes. Despite this potential, no consensus exists for whether judicial diversity affects behavior in trial courts -- i.e., the stage where the vast majority of litigants interact with the judicial branch. After addressing the research design limitations in previous trial court-diversity studies, the statistical results here indicate that a trial judge's sex and race have very large effects on his or her decision …

The Comparative Outputs Of Magistrate Judges, Christina L. Boyd

Scholarship@WashULaw

Do federal magistrate judges make different decisions and produce distinct judicial outputs from district judges? To provide initial empirical evidence on this question, this study utilizes federal district court data covering issue areas including employment discrimination, broader civil rights, intellectual-property rights, and personal-injury torts. The data indicate that magistrate judges are actively involved in civil cases, with as many as sixty-seven percent of cases having one or more magistrate judges serving in some role. These magistrate judges commonly preside over settlement conferences, decide discovery motions, issue reports and recommendations on dispositive motions, preside over status, management, and scheduling conferences, and …

Criminal Labor Law, Benjamin Levin

Scholarship@WashULaw

This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this …

Big Data And The Future For Privacy, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

In our inevitable big data future, critics and skeptics argue that privacy will have no place. We disagree. When properly understood, privacy rules will be an essential and valuable part of our digital future, especially if we wish to retain the human values on which our political, social, and economic institutions have been built. In this paper, we make three simple points. First, we need to think differently about "privacy." Privacy is not merely about keeping secrets, but about the rules we use to regulate information, which is and always has been in intermediate states between totally secret and known …

The Atlantic Divide On Privacy And Speech, Neil M. Richards, Kirsty Hughes

Scholarship@WashULaw

When does a right to privacy become a right of censorship? Conversely when does freedom of speech become a carte blanche to violate the dignity and autonomy of others? Discussions of privacy throughout the world frequently boil down to these questions. Despite the parallel relationships between privacy and speech in the United Kingdom and America, and despite their shared legal heritage, the two legal systems have struck the balance in radically different ways. In the United States, decisions balancing privacy and the First Amendment have invariably favoured the free speech interest, at least where a press defendant published lawfully-obtained “newsworthy” …

Taking Trust Seriously In Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

Law, Religion, And The Purpose Of The University, John D. Inazu

Scholarship@WashULaw

This brief essay explores the relationship between law, religion, and the university. Religion asks the fundamental questions of human existence. Law is the means through which we impose our beliefs on our fellow citizens. The particulars of law and religion expose the differences among us. We respond to those differences with chaos, control, or coexistence. Coexistence requires tolerance, humility, and patience, and it requires institutions to habituate these practices within us. It is not clear that this country presently has such institutions, but if we are discover them among us, the university is one possible contender. The people, place, and …

Recalibrating The Scales Of Municipal Court Justice In Missouri: A Dissenter’S View, 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.

New Research On The Stubborn Persistence Of Tax Expenditures, Conor Clarke

Scholarship@WashULaw

In this essay I examine new research on tax expenditures. By utilizing survey experiments, several new studies have explored when and why the public prefers spending programs organized as tax credits rather than direct expenditures, even when the substance and cost of the policies are the same. I argue that this 'framing effects' research can help explain why tax expenditures have continued to grow faster than government spending as a whole, and why tax expenditure budgets have failed to stop this growth.

What Are Tax Havens And Why Are They Bad?, Conor Clarke

Scholarship@WashULaw

This essay reviews Gabriel Zucman's The Hidden Wealth of Nations: The Scourge of Tax Havens. Zucman's important new book brings clarity to a confusing subject -- but occasionally does so at the expense of nuance. My review has three goals. First, I summarize and appraise Zucman's central findings, and re-estimate his revenue-loss totals for the United States using tax-rate assumptions that I believe are more realistic. Second, I position Zucman's findings against the backdrop of the wider literatures on tax havens and inequality, and attempt to answer the two questions in this essay's title. Third, I comment on Zucman's call …

Why The Supreme Court Might Not Overrule Seminole Rock, Conor Clarke

Scholarship@WashULaw

Predictions are hard, especially about the future. It’s much safer to hide behind a broad trend: There was a time, just a couple of years ago, when it seemed like Auer and Seminole Rock were not long for this world. Auer’s author, Justice Scalia, turned his back on the doctrine. The tide of scholarly opinion—led by former Scalia clerk John Manning—seemed to rise comfortably, almost casually, in opposition to Auer. Fueled by a few encouraging concurrences, cases percolated through the federal courts that seemed to provide a ripe opportunity for review.

But no longer. The Court reaffirmed Auer last year. …

Do Law Schools Adequately Prepare Students For Practice? Surveys Say . . . No!, Robert R. Kuehn

Scholarship@WashULaw

There has been much concern over declining bar passage rates, focusing attention on whether some schools are admitting students who may not be capable of passing the bar exam and whether a school’s program of legal education adequately prepares its graduates for the exam. But if studies of practicing lawyers and recent law graduates matter, it is clear that law schools are also failing in their primary mission to adequately prepare students for legal practice.

This paper examines studies by the National Conference of Bar Examiners, the Institute for the Advancement of the American Legal System, and the American Bar …

The President In His Labyrinth: Checks And Balances In The New Pan-American Presidentialism, Andrea Scoseria Katz

Scholarship@WashULaw

This dissertation presents a theory of the separation of powers centered on the President’s “power to persuade.” To meet the imperial public expectations placed on the office in the modern age, the President will reliably try to supplement his limited formal powers by convincing others to support his agenda, the people, party allies, and courts being the most important. The President’s techniques of persuasion fall into three regular categories. First, there is “going public,” or popular leadership, where the President turns the force of popular majorities into a tool for shaping policy or legislative outcomes. Second is executive law-making, whereby …

One Last Word On The Blackstone Principle, Daniel Epps

Scholarship@WashULaw

In "The Consequences of Error in Criminal Justice," I analyzed and critiqued the "Blackstone principle" — shorthand for the common intuition that a criminal justice system should strive to minimize false convictions, even at the expense of creating more false acquittals and more total errors overall. Joel Johnson's "Benefits of Error in Criminal Justice" is a thoughtful and well-crafted response to my article. In this short reply, I offer some thoughts on Johnson’s arguments, while also addressing two other recent responses by Laura Appleman and by John Bronsteen and Jonathan Masur. While I use this opportunity to clarify and defend …