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Birth Rights and Birth Wrongs Through A Common Law Lens: Why the No Liability Regime Is Likely to Ensure
No full textAsymmetric Subsidies and the Bail Crisis
Get PDFWhen individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals—traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail.
Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result—wholly predictable given the size and asymmetric nature of the subsidy—is that the United States maintains an inefficiently large jail population that both costs taxpayers too much and excessively limits the liberty of too many. Prior commentators and reformers have correctly identified the overuse of pretrial detention in jails as a major public policy crisis and have urged substantial reforms to current bail processes up to and including the abolition of state constitutional rights to bail (as one state has recently done). We believe that the hostility toward bail overlooks the root cause of the problem, which is the asymmetric subsidization of jail over bail. We propose a balanced subsidization system that can preserve the beneficial aspects of a traditional bail surety system while (i) reducing unnecessary and inefficient restraints on individual liberty, (ii) addressing the distributional in-equities of current practices, and (iii) saving taxpayers billions of dollars per year
In Search of Ordinary Meaning: What Can Be Learned from the Textualist Opinions of Bostock v. Clayton County?
Get PDFIn Bostock v. Clayton County, the Supreme Court held that Title VII protects gay and transgender individuals from employment discrimination. Writing for the majority, Justice Neil Gorsuch adhered to textualist principles and relied on the ordinary public meaning of the phrase “discriminate because of sex.” Despite the ma-jority opinion purportedly not reaching beyond the words of the statute, three other conservatives on the Court accused Justice Gorsuch of legislating from the bench. Central to this Comment, Justice Brett Kavanaugh took exception with how Justice Gorsuch reached his ordinary meaning of the phrase. The debate between these two Justices can be characterized as a debate between semantics and pragmatics—two schools within the field of linguistics. Justice Gorsuch’s stringing together the precedent-defined meaning of the individual terms of the statute resembled semantics. Justice Kavanaugh’s reliance on considering the phrase as a whole and an examination of the broader societal and historical context resembled pragmatics
This Comment proposes a sliding-scale approach that indicates when to move between semantics and pragmatics. What makes the scale slide is the pool of precedent, or the variability in how courts and their precedent have defined the words of a phrase. As the pool of precedent increases, the need to support a semantics-derived meaning of the phrase with pragmatics increases. To create a proxy for the variability of precedent-defined words, this Comment creates a tiered structure based on our court system’s hierarchy of precedent. By adopting this sliding-scale approach, courts will be able to interpret statutes while supporting textualism’s goal of judicial restraint
It’s All About (Re)location: Interpreting the Federal Sentencing Enhancement for Relocating a Fraudulent Scheme
Get PDFSection 2B1.1(b)(10) of the U.S. Sentencing Guidelines Manual increases the recommended sentencing ranges for defendants who make fraudulent schemes harder to uncover. In particular, subsection (A) of this Guideline—the relocation enhancement—increases a defendant’s recommended sentence if she “relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials.” This provision raises the question: Where is a fraudulent scheme located? The question might have a straightforward answer in cases that involve few defendants and few fraudulent acts. But federal circuit courts have split over how to apply this enhancement to schemes that span multiple jurisdictions at once, exacerbating a preexisting disagreement about the level of intent required by the relocation enhancement.
This Comment argues that courts can resolve these problems by limiting the applicability of the relocation enhancement. Specifically, courts should apply the re-location enhancement only to cases where the defendant committed an act of deception in one jurisdiction, grew suspicious of a specific law enforcement investigation into her actions, fled the jurisdiction because of that investigation, and then committed the same deceptive act in a new jurisdiction. This reading draws support from interpretive canons, Sentencing Commission guidance, and existing literature on the deterrent effect of sentencing enhancements. This reading also encourages courts to make greater use of another provision in § 2B1.1(b)(10)—the sophisticated-means enhancement—to address the problems posed by multijurisdictional fraud schemes
Federal Rules of Platform Procedure
Get PDFTech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person’s public image and another\u27s profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, must by federal law provide timely notice, a reasonable investigation, and other procedural minimums. In contrast, platforms have almost unfettered discretion. Under intense public pres-sure, Facebook recently began building an independent oversight board that can overrule content moderation decisions. But whether other platforms will follow is unclear, and Facebook’s oversight board has significant limits. If the largest plat-forms face limited competition while serving as the primary arbiters of disputes in the information age, they warrant mandated procedures as did financial institutions before them. The procedures would aim to improve the administration of justice through public accountability and separation of at least one of platforms’ executive, legislative, and judicial powers
Education’s Deep Roots: Historical Evidence for the Right to a Basic Minimum Education
Get PDFFor decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the right to a basic minimum education—defined as basic literacy—is deeply rooted.
While courts differ in how they analyze whether a right is deeply rooted, they all generally view the time around the Fourteenth Amendment’s enactment as a relevant historical consideration. With a focus on that time period, this Comment analyzes two case studies: the Bureau of Refugees, Freedmen, and Abandoned Lands—or “Freedmen’s Bureau”—and the Bureau of Indian Affairs. In both cases, the federal government perceived a gap in local provision of education and responded through these agencies with support for literacy education. In serving as a backstop to local educational failures, the federal government’s actions ensured access to a basic literacy education. This pattern of behavior provides support for the notion that the right to a basic minimum education is deeply rooted
What is Privacy? That’s the Wrong Question
Get PDFEvery year on the first day of my course on information privacy law, I ask my students to define the concept of privacy. Usu-ally, I get a few different answers, each of which is built around some singular and definitive conceptualization of privacy. Some notions include: Privacy is “control over personal information.” Privacy is “secrecy.” Privacy is the “right to be left alone.” And so on. Then I gently push back, asking my students about notions of privacy that fall outside their definition. Which definition should the law adopt? All of these definitions seem right, yet somehow not enough. I ask whether it is a good idea to define privacy so broadly that it is synonymous with all personal interference. My goal is for students to appreciate that there are many ways to conceptualize privacy, each of which is underinclusive or overinclusive. I point to the many ways that scholars have explored various components of the important but remarkably vague notion of privacy, happy to leave its definitive boundaries undefined. Scholars and lawmakers are not always so comfortable with such uncertainty; I have made my peace
A Pioneer of the Law & Society Movement: One Eyewitness’s Reflections
Get PDFThere is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.
Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled at the University of Pennsylvania for law school in 1953. Yet after a frustrating first year at Penn, because of what he saw as the narrow confines of legal education, Marc returned to Chicago—his intellectual oasis. There, he finished his M.A. and began at the law school as a second-year transfer student, and he ultimately earned his J.D. in 1956.
This Essay will offer my perspective on the influence that Marc has had on different areas of the law, as well as on me. In what some of my friends in India might refer to as “destinical,” forty years after Marc contemplated leaving legal education and the law altogether, he encountered a terribly naïve student who was experiencing similar sentiments after his 1L year. In 1994, after completing two semesters at Ohio State, I felt lost. I knew that I had a keen interest in how law intersected with politics, particularly within the country from where my parents immigrated—India. I also knew that I might one day want to write and teach in the areas of law and social science. But beyond these generalities, I was not sure about much else.
During that summer of 1994, I set up three meetings with academics at Ohio State: the judicial politics scholar Lawrence Baum; Nancy Rogers, who was highly regarded in the field of alternative dispute resolution (ADR); and then-provost Richard Sisson, a political scientist who studied India. After hearing about my interests, each independently suggested that I reach out to Marc to introduce myself.
I subsequently wrote to Marc. As an undergrad (also at Ohio State), I had read his famous book Competing Equalities, which dealt with the legal struggles lower castes faced in India. I mentioned how I had done a senior honors thesis on the Indian caste system and that I was inspired by the decades that he had spent becoming an expert on Indian law and society. I also explained that I was unfulfilled in law school and that I would love to hear his thoughts on how best I should proceed.
To my surprise, Marc called me one evening and said that he was delighted to receive my letter. While several law students over the years at Wisconsin had taken an interest in Africa, China, Europe, and Latin America, he said that few had focused on India, and it was exciting to hear from me. He then had an idea.
He suggested that I should complete my second year of law school at Ohio State but that, during my 2L fall semester, I should apply to the Ph.D. program in political science at Wisconsin, which had a group of acclaimed scholars who researched issues related to law and comparative politics. If I was accepted, I could join the following year and then finish my third year of law school in Madison in due time as a visiting student. Additionally, I could possibly work with Marc as his research assistant and take an intensive independent study with him. And he said that I could become involved in Wisconsin’s renowned Center for South Asia, where he held a faculty appointment.
I was spellbound—and persuaded. I spent the fall of 1994 studying for the GRE and coordinating the necessary logistics. In the spring of 1995, I was admitted to Wisconsin, and, later that summer, I was off to Madison
The Personal Finances of United States Supreme Court Justices and Decision-making in Economic Litigation
No full textWhat explains probusiness judicial decision-making? Existing scholarship focuses on federal judges acting strategically or ideologically, but this represents only some factors affecting judicial behavior. Our objective is to develop a theory of judicial decision-making in economic litigation based on judges’ personal finances. We test this approach by considering how Supreme Court justices’ investments impact decision-making in cases involving businesses. While ethical standards suggest that judges should recuse themselves from cases whose outcomes affect them financially, research implies that judges make strategic choices regarding ethical conflicts. If judges participate in cases that implicate their personal finances, does this affect their votes? We marshal evidence from Supreme Court justices’ financial disclosures and argue that in business litigation, judges vote to promote the economic well-being of industries in which they invest. We find justices are more likely to decide for business litigants when personally invested in firms from industries affected by the litigation’s outcome
Field Preemption: Opening the “Gates of Escape” from Tort Law
No full textFraming Richard Epstein’s case for field preemption as a means of compensating for systemic errors of tort law rather than an outgrowth of his broader views on constitutional law shows that his critique of the agency reference model is overdetermined. That model incorporates principles of administrative law into courts’ preemption decision-making framework. Evidence that courts are equipped to scrutinize the administrative regulatory record in deciding whether failure-to-warn or design defect claims are preempted matters not to Epstein, given his preference for wholesale eradication of such claims. Products liability claims may be the wrong target. The rise of federal preemption stunted the evolution of more restrictive state law standards like section 6(c) of Restatement (Third) of Torts: Products Liability. Field preemption is as much to blame as expansionist products liability law for perpetuating the need for a gate of escape from poorly developed concepts of tort liability against prescription drug manufacturers