Loyola University Chicago, School of Law: LAW eCommons
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Accountability Lost and the Problem(s) of Asymmetry
No full textProfessor Gilchrist argues that calls for more individual prosecutions in cases of corporate malfeasance are ultimately misguided. In this Essay, Gilchrist discusses the asymmetries of information and power within corporations that make criminal prosecutions of high-level executives particularly difficult and often inappropriate
Regulating Prosecutors’ Courtroom Misconduct
No full textTrial prosecutors’ visible misbehavior, such as improper questioning of witnesses and improper jury arguments, may not seem momentous. Sometimes, the improprieties are simply the product of poor training or overenthusiasm. In many cases, they pass unremarked. As the Chicago Eight trial illustrated, trial prosecutors’ improprieties may also be overshadowed by the excesses of other trial participants—the witnesses, the defendants, the defense lawyers, or even the trial judge. And when noticed, prosecutors’ trial misbehavior can ordinarily be remedied, and then restrained, by a capable trial judge. It is little wonder that disciplinary authorities, having bigger fish to fry, are virtually indifferent to the problem. And yet, in the obvious absence of disciplinary regulation, prosecutors and their offices have less motivation to play by the rules.
The challenge for disciplinary regulation is to find a proportional response to trial misconduct—one that does not punish prosecutors undeservedly, unnecessarily, or too harshly but that nevertheless serves regulatory ends. Building on the Supreme Court’s observation that a prosecutor’s repeated improprieties should be met with “stern rebukes,” this Article proposes that prosecutorial improprieties that are deserving of judicial rebuke should not be forgotten. Rather, repositories—or rebuke banks—should be maintained to preserve transcripts of prosecutors’ on-the-record misconduct, even when it is committed unintentionally. Maintaining these records, which would be relatively easy in the computer age, would serve salutary regulatory ends while maintaining the necessary sense of proportionality
Judicial Democracy
No full textMany scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law.
Majority rule by legislatures is not the only defining feature of democracy; rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic
Predictive Analytics
No full text“Predictive Analytics” blends the latest research in behavioral economics with artificial intelligence to address one of the most important legal questions at the heart of intellectual property law and antitrust law – how do courts and agencies make judgments about innovation and competition policies? How can they better predict the consequences of intervention or non-intervention?
The premise of this Article is that we should not continue to build doctrine at the IP-antitrust on theoretical neoclassical assumptions alone but also on the reality of markets using all that AI has to offer us. Behavioral economics and AI do not replace traditional antitrust analysis. Rather, they are complements and imbue antitrust law with continuing durability.
Predicting competitive effects is difficult and we need tools to predict outcomes as precisely and reliably as possible. Until now, antitrust law has only been able to operate before a veil of assumptions and rhetoric. Stakeholders have only been able to think about whether and how to intervene in the exercise of IP rights, particularly patent rights, in the broadest terms since even the smallest perturbations in a complicated set of variables can set off ripples that lead to dramatically divergent outcomes. Facts have always mattered in antitrust law, and a more expansive toolkit can only increase our likelihood of getting it right.
Behavioral economics sheds light on anticompetitive conduct that neoclassical antitrust may regard as irrational and therefore improbable. Once we recognize that it is rational and probable, we need to quantify and value the effects of the conduct. To do this, we need to employ more of the analogical reasoning intrinsic in antitrust law. For that, predictive analytics is very good in helping stakeholders with pattern recognition and simulation runs. This brings us closer to being able to ascribe value which human judgment can be brought to bear. In these, AI provides stakeholders with augmented capabilities to confront the computational challenges these tasks require
\u3cem\u3eBivens\u3c/em\u3e and Constitutional Integrity at the Border: \u3cem\u3eHernandez v. Mesa\u3c/em\u3e & \u3cem\u3eRodriguez v. Swartz\u3c/em\u3e
No full textMexican national J.A. Rodriguez took ten bullets in the back on October 10, 2012. He was walking home, and his usual route happened to take him down a street that runs alongside the United States-Mexico border. The shots, fired by United States Border Patrol, came from United States territory without warning or provocation. Anywhere in the United States, the shooting victim would have a civil claim for relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for constitutional violations committed by federal officers. The Ninth Circuit found that Rodriguez was entitled to Fourth Amendment protections under Bivens, but others, like Sergio Adriàn Hernàndez Guereca who was shot in the face by a Border Patrol agent standing in Texas and aiming over the border, have not been allowed such relief. The Supreme Court has granted certiorari to determine whether the duties incumbent upon federal agents under the Constitution extend to people on the other side of the border. This article argues that justice ought not to be constrained to man-made borders and the Court should accordingly resolve this split in favor of Rodriguez and Hernández by adopting the Ninth Circuit’s reasoning. The Ninth Circuit considered the new context raised by Rodriguez’s claim and fairly concluded that no special factors counseled against relief. Despite the “disfavored” nature of the remedy, the Ninth Circuit saw that justice demanded relief. Before the Court is an opportunity to reinvigorate Bivens and cure the stigma surrounding the cause of action in federal courts. This article argues that Bivens can and should be used more often to preserve the integrity of the Constitution, and that Hernandez v. Mesa presents the Court a ripe opportunity to do so
War is More Than a Political Question: Reestablishing Original Constitutional Norms
Full text linkSince World War II, it has become increasingly common practice for presidents to use non-defensive military force abroad without obtaining congressional pre-approval, thereby leaving Congress with no meaningful role in the decision. This modern practice is clearly at odds with the Constitution’s text and original meaning. A wealth of scholarly commentary concludes that the Constitution grants Congress alone the power to authorize non-defensive military force. Although not expressly mentioned in the Constitution, ample commentary also concludes that a president has inherent constitutional power only to defend the nation from an actual or impending attack.
This Essay rejects the notion that a president’s independent constitutional authority to use non-defensive military force is, as a matter of constitutional law, left solely to the routine political give and take of the elected branches. In a republic based upon fundamental individual rights to life, liberty, and property—and of a limited central government constrained by fundamental law—legislative acts and well-accepted principles of necessity must govern a president’s legal authority to invade individual rights through the use of military force. A more complete contextual and structural reading of the Constitution’s text, as well as early government practice and relevant Supreme Court precedent, demonstrate that the Framers and ratifiers of the Constitution believed these basic, rule-of-law and separation-of-powers principles to be etched into the Constitution’s original design.
This Essay briefly reviews the current situation and comprehensively surveys the Constitution’s allocation of war- and military-related powers to demonstrate Congress\u27s extensive authority over war and the nation\u27s armed forces. This review strongly confirms the view that the Constitution requires Congress to affirmatively authorize all non-defensive military force and provides Congress with several powers to check a president\u27s use and command of the military. It then briefly posits some of the reasons the relevant constitutional norms have eroded, clarifies why aberrant past practice cannot amend the Constitution\u27s separation of war powers, and explains why Congress must reestablish its authority, briefly suggesting two ways that it may do so
Up Against the Wall: Congressional Retention of the Spending Power in Times of “Emergency”
No full textPresident Trump’s border wall has evolved from an ambitious campaign promise into a real opportunity to explore presidential versus Congressional authority to determine how the president spends Congressionally appropriated funds. The president’s arguments that he has the power to build the wall under either the National Emergencies Act or the funding provisions of 10 U.S.C. § 9705 or 10 U.S.C. § 284 lack merit—the cited non-emergency-tied statutes do not provide funding for the wall. The former authorizes the utilization of Treasury Forfeiture funds tied to specific law enforcement activities but excludes the ambitious and broad construction project the president proposed; the latter authorizes support only for counterdrug activities. The wall constitutes an unprecedented appropriation for a project without mooring in statutory language permitting only unspecified minor military construction projects.
Nor does The National Emergencies Act authorize the president to use Congressionally appropriated funds to build a wall that congress has expressly declined to fund. Congress enacted the National Emergencies Act after Executive abuses during the Vietnam War and to curb—not encourage—presidential usurpation of Congressional spending power based on emergency rationales. Although the National Emergencies Act imposes scant substantive and procedural limitations on a president’s ability to declare a national emergency and divert funds to address such an emergency, the Act does not allow the president to manufacture a basis for such a declaration where none exists. Even so, the chronology of events leading up to the emergency declaration demonstrates that the president’s invocation of an emergency is a ruse.
Additionally, the president’s Executive Order cites 10 U.S.C. § 2808, which requires the declaration of a national emergency under the National Emergencies Act. That Act authorizes a president to undertake “military construction projects” when he declares a national emergency in accordance with that Act. But Section 2808 only applies where a national emergency “requires the use of the armed forces” and only authorizes military construction projects “necessary to support such use of the armed forces.” The statutory language of 10 U.S.C. § 2808 makes it clear that effectuating immigration policy does not qualify as a military construction.
It has been long settled that presidential power must stem from an act of Congress or from the president’s own Article II powers. That dictum need not deprive a president of flexibility in the execution of powers delegated to her by Congress or in the execution of power delegated to her by the Constitution. Neither the foreign affairs power to recognize nations nor Commander in Chief authority to repel sudden attacks authorize the president to spend funds appropriated by Congress for other purposes. The Constitution did delegate to Congress the power to “provide for the common defense and general welfare” of the United States with the proviso that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law.” That provision does not deprive Congress of the flexibility to delegate power to the president, but here Congress did not authorize these expenditures and expressly declined to provide funding for “the Wall” on two occasions. Thus, the president’s use of Congressionally appropriated funds to build “his Wall” is in conflict with Congress’s will and unlawful. So far, though lower courts have agreed with this result, a Supreme Court stay of the decision that enjoined the use of Defense Department funds in effect permits the president to finalize contracts and begin wall construction pending the resolution of the dispute on the merits in the Ninth Circuit and the Supreme Court. In its short decision that granted the stay, the Supreme Court signaled that if the case arrives via certiorari and the Court grants review, a majority will conclude that the Sierra Club plaintiffs have “no cause of action.” If that transpires, the favorable outcome for the president will turn on the nature of the litigants not the legality of the Wall construction project. For those concerned with the preservation of constitutional limitations on the Executive, “better half a loaf than none at all.”
