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Making the New Public Safety Safe
No full textShawn Fields\u27 The New Public Safety: Police Reform and the Lurking Threat to Civil Liberties, which will be published by the University of California Press in September, is a brave and wise effort to envision a post-DeFund the Police world. While the defund movement has, at best, been a mixed success, some municipalities have experimented with de-policing routine interactions with people who are unhoused and mentally ill, authorizing civilian violence interrupters to roam the streets, and handing over traffic enforcement to unarmed officials. In The New Public Safety, Fields endorses these developments but also cautions that, without regulation, they will become simply a new version of policing, one that may look soft but in fact is not. At the same time, he argues that, with regulation, soft policing is preferable to the goal of entirely dismantling government-oriented responses, a goal that is currently popular in some circles but, as Field shows, goes too far
Building a Long Text Privacy Policy Corpus with Multi-Class Labels
No full textLegal text poses distinctive challenges for natural language processing. The legal import of a term may depend on omissions, cross-references, or silence, Further, legal text is often susceptible to multiple valid, conflicting interpretations; as the saying goes: a good lawyer’s answer to any question is “it depends.”This work introduces a new, hand-coded dataset for the interpretation of privacy policies. It includes privacy policies from 149 firms, including materials incorporated by reference. The policies are annotated across 64 dimension that reflect the applicable legal rules and contested terms from EU and US privacy regulation and litigation. Our annotation methodology is designed to capture the capture core challenges peculiar to legal language, including indeterminacy, interdependence between clauses, meaningful silence, and the implications of legal defaults. We present a set of baseline results for the dataset using current large language model
Responsive Democracy and the Administrative State
No full textI would like to thank Dean Micheal Scharf and Professor Jonathan Entin for inviting me to Case Western Reserve University School of Law to deliver the Frank J. Battisti Memorial Lecture and thank all of you for attending. It\u27s really a pleasure to be here and to have the opportunity to offer a talk named after such a distinguished jurist. Judge Frank J. Battisti served on the United States District Court for the Northern District of Ohio for 33 years, and he was chief judge of that court for more than two decades. During his time on the bench, Judge Battisti handled a number of historically significant cases, including the long-running Cleveland school desegregation case,\u27 important Fair Housing Act litigation, and lawsuits involving the location and operation of public housing in and around Cleveland. The Frank J. Battisti Memorial Lecture was endowed in large measure due to the devotion of many ofJudge Battisti\u27s clerks, a good number of whom graduated from the Case Western Reserve University School of Law. The lecture series has included an extraordinary array of distinguished speakers, both from the law and from other fields in which Judge Battisti had an abiding interest, including leading judges, legal scholars, religious leaders, political theorists, and prominent civil rights figures
Proving the Future in Criminal Cases
No full textExpert opinion about dangerousness—the risk of reoffending—is commonly introduced at sentencing, criminal commitment proceedings, and some types of pretrial detention hearings. This Essay argues that the rules governing the admissibility of scientific evidence should apply to this testimony and that, on that assumption, such evidence must be (1) “material” (logically relevant, empirically generalizable, and epistemologically germane), (2) “probative” (a measure of accuracy, which is more stringent when the evidence is from an expert), (3) helpful to the factfinder (through promoting “incremental validity”), and (4) presented in a non-prejudicial manner (i.e., in a way that minimizes the possibility it will be misused or misinterpreted). Application of these rules to expert testimony about risk would have significant implications not only for its admissibility in criminal cases but also for the way that testimony is expressed, the law governing dangerousness, and the methods used to assess it
Filling the Sackett Gap: the Private Governance Option
No full textThe Supreme Court\u27s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools to close the Sackett Gap-the gap between the wetlands protected before and after Sackett. Scholars have argued for federal measures to fill the Sackett Gap, but these actions face substantial challenges. Congress is unlikely to adopt new wetlands legislation, agencies are constrained by Sackett\u27s expansive language, the end of Chevron deference, and the 2024 presidential election, and lower federal courts are constrained by the emergence of the major questions doctrine. Recognizing these constraints, scholars have turned to state and local governments, but more than half of the states limit their wetlands requirements to be no more stringent than federal requirements, and many restrict the options of local governments
Fighting Mass Arbitration: An Empirical Study of the Corporate Response to Mass Arbitration and Its Implications for the Federal Arbitration Act
Full text linkMass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.
Recently, however, consumer and employee advocates have responded to class action bans by filing thousands of individual arbitration demands, which have exposed companies to millions of dollars in filing fees and resulted in large settlements. This practice has become known as “mass arbitration.” Although corporations have cried foul, courts so far have allowed mass arbitrations to occur.
No one expects companies to accept this latest development without a fight. Yet scholars have not comprehensively examined how companies have adapted their arbitration provisions to try and squelch mass arbitration. This Article provides an empirical study of the arbitration clauses of 106 large consumer-facing companies. It reveals that most companies now require claimants to exhaust pre-arbitration procedures prior to initiating an arbitration. Many companies also require cases to be arbitrated in sequential batches rather than all at once, allowing companies to spread their fee obligations and liability risks over a longer time horizon. Other companies have chosen arbitration providers who offer lower fees.
The study’s findings have several important implications. First, companies’ new responses to mass arbitration have claim-suppressing effects. Pre-arbitration requirements make it easier for companies to dismiss claims if those requirements are not satisfied. Arbitrating claims in staggered batches delays proceedings, forcing claimants to wait longer to seek relief for their injuries.
Second, the corporate response to mass arbitration—adding provisions that inject procedural complexity and aggregate decisionmaking—transforms arbitration to such a degree that it is no longer the type of arbitration covered by the Federal Arbitration Act. Consequently, state governments should have broad license to intervene without being preempted by the Federal Arbitration Act. This Article provides a roadmap for how states can act to rein in companies’ most troubling responses to mass arbitratio
And the Two Shall Become One: Conceptualizing the Right of Publicity as the Nexus of Trademark and Copyright Law
Full text linkThe right of publicity, which bars the unauthorized commercial use of a celebrity’s likeness, has become increasingly important in recent years. As generative artificial intelligence (AI) threatens to replace singers’ voices and actors’ appearances on screen, people are increasingly looking to the right of publicity to protect entertainers from exploitation.
Defining the right of publicity, however, is notoriously difficult. Since the right overlaps with both trademark and copyright law, circuit courts are currently split over whether to apply the trademark-based Rogers test or the copyright-based transformative use test.
This Note, in addressing this split, proposes a legal framework under which all right of publicity cases can be evaluated uniformly. The central point is that the right of publicity does not function as only a trademark or only a copyright, but as a combination of both. In identifying the two distinct harms associated with the right of publicity, this Note proposes a solution—called the “dual harm approach”—that combines both sides of the circuit split instead of choosing one over the other. By tying the right of publicity to existing trademark and copyright doctrine, this approach will enable judges to evaluate publicity rights claims with familiar concepts instead of starting from scratch
The Illusion of Stability in Family Law
Full text linkStability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability’s pride of place in family law, identifying three problems with the law’s use of stability.
First, stability is often used in a circular way. Lawmakers treat stability as a requirement—a trait to which the law responds—even while acknowledging that those same forms of stability are a consequence within the law’s power to produce. This circularity proves that stability is doing very little analytical work. Second, stability is indeterminate. It has multiple meanings that often come into conflict with no agreed-upon hierarchy to choose among them. Third, as a result of the first two problems, lawmakers’ prior views about relationships—like polyamorous relationships or same-sex relationships—and their assumptions about race and class will inevitably infect the determination of whether such relationships are stable and therefore worthy of legal protection.
Family law’s veneration of stability imperils already-marginalized family relationships. This Article proposes two reforms. Stability writ large should often be discarded in favor of specific markers—whether duration, financial security, psychological attachment, or others—that can be verified and weighed in light of desired policy outcomes. Scholars and lawmakers must also identify values beyond stability—such as fluidity, resilience, and satisfaction— to guide legal reforms and judicial decisionmaking
In Government We Trust: Judicial Deference to Government Evidence in Removal Proceedings
Full text linkOn its face, the Form I-213 appears to be a humble bureaucratic form unremarkable to the untrained eye. In reality, this document alone can singularly sustain the federal government’s case for the deportation of a noncitizen in removal proceedings. The Form I-213 sits at the cradle of interlocking judicial and procedural norms within immigration practice that largely diminish the due process rights of noncitizens facing deportation. This Article sheds light on two important but relatively underexamined phenomena that undergird this system: how a disregard for evidentiary rules largely eliminates the government’s burden of proof in removal proceedings and how judicial deference to government agents systemically enables this practice.
This Article explores the foregoing dynamic through the lens of the Form I-213, a government form generated by federal immigration officials that is frequently used to demonstrate a noncitizen’s deportability. Instead of holding federal immigration agents to basic standards of evidentiary practice, the immigration courts deftly formulated a special evidentiary rule to ensure the routine admissibility of the Form I-213, deeming it an “inherently reliable” document. Every circuit court to have considered this issue categorically adopted the inherent reliability rule, generally without analysis or consideration of the liberty interests at stake for individuals facing deportation. While the federal government carries the initial burden of proof in removal proceedings, this burden is rendered meaningless when government agents can generate dispositive evidence, knowing that judicially constructed evidentiary rules render such evidence admissible as a matter of course. When removal proceedings are predicated on such a power asymmetry from the outset, noncitizens facing deportation start off even more deprived of due process than the statutory scheme envisions.
The construction of this rule that provides special treatment to Form I213s, and its unblinking acceptance by the federal courts, is emblematic of how due process deficiencies in administrative courts can become so embedded in practice that they largely go unnoticed. Despite the fact that a legal framework exists for evaluating the sufficiency of procedural rules in protecting due process rights of individuals in administrative hearings, these practices often charge forward in the name of efficiency without any meaningful evaluation of the due process implications. By deeply exploring constructs like the inherent reliability rule that have been unquestioningly adopted by administrative adjudicators and the federal courts alike, we can more effectively calibrate the optimal balance between achieving efficiency and protecting the liberty interests at stake for those in administrative proceedings
Rethinking the Litigation Boom
Full text linkThis Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000–2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers “herd” or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment. This analysis has normative implications, suggesting that litigationsuppressing legislative or judicial intervention may not always be necessary, though tweaks to system design could achieve more efficient outcomes and more equitably distributed access to legal representation