Loyola University Chicago, School of Law: LAW eCommons
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A Norms-Based Approach to Sustaining Integration
No full textHeadlines about racial polarization and a country divided obscure an important present opportunity: racial integration initiated by local community choice. These local contexts have national significance in light of census data showing that American suburbs and exurbs are perfectly positioned to integrate and can do so through local choice irrespective of what occurs at the federal level. However, integration is not preordained. Census data shows segregation decreasing within some large cities but increasing in metropolitan areas as a whole. When Blacks move to the suburbs, Whites flee to locations ever farther from the city\u27s center. Suburbs and exurbs, not cities, are the new ground zero for integration efforts. The stakes are high: Ferguson, Missouri, home of the 2014 protests, is a suburb from which sixty-two percent of the White population fled between 1990 and 2010. Using empirical fieldwork from a Chicago suburb that successfully integrated in the 1970\u27s, this Article sheds light on how norms and other behavioral phenomena fuel the dynamics of integration. When a community deliberately chooses to integrate, it generates norms that foster and sustain integration. As a norm weaves itself into the fabric of the community, it becomes even more powerful than law. The norm helps ensure that individuals within the community make integration-affirming choices, even when those choices are costly. When the norm is visible to those outside the community, it attracts new members who value integration and are likely to support the policies that foster it. Once suburbs and exurbs opt for integration instead of White flight, norms and other mainstays of behavioral law and economics allow integration to perpetuate
Interrogating Police Officers
No full textThis Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques. The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these police departments require internal investigators to provide officers with copies of incriminating evidence before any interrogation. These protections exist in departments of all sizes, regardless of geographical location. The second part of this Article relies on a national survey of American law enforcement leaders to evaluate whether these regulations frustrate officer accountability efforts. The overwhelming majority of the survey respondents claimed that these interrogation regulations substantially burden legitimate investigations into officer behavior. Virtually all survey respondents agreed that these protections do little to reduce the likelihood of false confessions. Combined, this data paints a troubling picture of the internal procedures used to investigate and respond to officer misconduct. This data suggests that states and municipalities have given police officers procedural protections designed to thwart internal investigations, thereby limiting officer accountability. This Article concludes by offering normative recommendations on how communities can reform interrogations of police officers so as to balance the community interest in accountability with officers\u27 interests in due process
The Effects of Voluntary and Presumptive Sentencing Guidelines
No full textThis Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.
For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally adhere to them unless they can justify a departure.
In order to explore the effects of both voluntary and presumptive sentencing guidelines on judicial behavior, this Article relies on a comprehensive dataset of 221,934 criminal sentences handed down by 355 different judges in Alabama between 2002 and 2015. This dataset provides a unique opportunity to address this empirical question, in part because of Alabama’s legislative history. Between 2002 and 2006, Alabama had no sentencing guidelines. In 2006, the state introduced voluntary sentencing guidelines. Then in 2013, the state made these sentencing guidelines presumptive for some non-violent offenses.
Using a difference-in-difference framework, we find that the introduction of voluntary sentencing guidelines in Alabama coincided with a decrease in average sentence length of around seven months. When the same guidelines became presumptive, the average sentence length dropped by almost two years. Further, using a triple difference framework, we show that the adoption of these sentencing guidelines coincided with around eight to twelve-month reductions in race-based sentencing disparities and substantial reductions in inter-judge sentencing disparities across all classes of offenders. Combined, this data suggests that voluntary and presumptive sentencing guidelines can help states combat inequality in their criminal justice systems while controlling the sizes of their prison populations
Do Justices Time Their Retirements Politically: An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era
No full textAs the rampant speculation preceding Justice Kennedy\u27s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice\u27s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama\u27s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices\u27 retirement decisions and disagree on whether political factors predict retirement. This Article identifies key reasons past studies have found Justices\u27 retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices remaining on the Court, this study offers the first measure of Justices\u27 success in obtaining like-minded replacements. The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice\u27s voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire while presidents who share their ideology are in office
The Federalization of Corporate Governance—An Evolving Process
No full textThis Article focuses on the timely subject of the federalization of corporate governance in the United States from both contemporary and historical perspectives. Although the states traditionally have overseen the sphere of corporate governance, federal law today affects the governance of publicly held corporations to a greater extent than ever before in our nation’s history. This Article, drawn from the author’s recently published Oxford University Press book (The Federalization of Corporate Governance), addresses this timely subject from the commencement of the 20th century to the present. Through the decades, the federalization of corporate governance has gone through periods of activism, gradual transition, and stagnation. While the Sarbanes-Oxley and Dodd-Frank Acts intensified this federalization process, it is an overstatement to conclude that these Acts comprise its foundational components. Rather, these Acts significantly enhanced the strong presence of federal corporate governance that already prevailed
Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years
Full text link\u3cem\u3eSouth Dakota v. Wayfair\u3c/em\u3e: Erasing a Dull Bright-Line
Full text linkFor over half a century, states were unjustly deprived access to a significant portion of their tax bases due to Supreme Court precedent that was dated since its very inception. South Dakota v. Wayfair, Inc. righted this wrong by granting states the power to lay taxes on out-of-state businesses that actively solicit sales from in-state customers. For decades the judicially-created physical presence rule prevented states from collecting sales taxes on these transactions, moving tens of billions of tax dollars out of reach. The rule lead to exploitation by businesses at states’ expense.
Aside from its detrimental effect, this rule has always been bad law. The constitutional principles and jurisprudence applied to adopt this rule were taken from outdated and rejected Supreme Court opinions that had no place at the physical presence rule’s inception, and certainly have no place today. The Court’s focus on this rule’s effect represents a return to constitutional form through its rejection of hyper-formal distinctions and embrace of practical considerations
