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Ten Tips for Legal Empiricists
No full textThis essay offers practical tips from leading legal empirical researchers to assist new scholars who are entering the field. Topics include developing meaningful research questions, designing robust survey methodologies, balancing qualitative and quantitative approaches, ensuring data transparency, fostering interdisciplinary collaboration, and navigating ethical considerations in empirical work. Drawing from their own unique challenges and successes, these scholars illuminate what they wished they would have known going into empirical research and the pitfalls to avoid.
Although many examples focus on intellectual property law, the principles outlined here are broadly applicable to all legal empirical scholarship. This essay aims to serve as a concise and accessible resource for aspiring empiricists seeking to produce impactful, methodologically sound research
The Search of a Search: Moderating Reverse Internet Keyword Warrants
No full textStatistics show that Americans consistently turn to Google and other search engines to answer their most personal and private concerns, yet a new investigative tool risks law enforcement having vast discretion in the access of this data. With a keyword warrant, law enforcement can request from a search engine provider (usually Google) a list of probative search queries that users made over a specified time period. Such warrants are beginning to face legal challenges, and so far, courts seem reluctant to recognize the constitutional implications—instead leaving law enforcement with greater potential discretion over their use.
This Note assesses the constitutionality of keyword warrants by arguing that the underlying investigative process falls within the ambit of the Fourth Amendment. It further concludes that keyword warrants may pass constitutional muster in a narrow set of circumstances, but that doing so requires robust judicial oversight. Finally, this Note proposes a novel approach that magistrates can adopt to ensure that keyword warrants comply with core constitutional safeguards. This Note contributes to current discourse by becoming the first piece of scholarship to urge the recognition of Fourth Amendment implications of keyword searches while also envisioning a narrow case in which they may be constitutional and proposing a pragmatic solution to ensure the protection of Americans’ privacy interests
Sex Crimes and Progressive Prosecution: Reimagining Sex Offenses and SORN Laws as an Opportunity for Criminal Justice Reform
Full text linkAs progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender recidivism, these laws have remained a fixture of the American legal system since their nationwide introduction in the 1990s. This note seeks to understand the persistence of the SORN framework and ultimately argues that progressive prosecutors, through a rich normative model of prosecution, should target the SORN framework as an area ripe for reform
Forward: Racial Justice in a Changing World
Full text linkOn October 25th, 2024, the Northwestern University Law Review hosted its annual symposium, titled Racial Justice After SFFA v. Harvard. The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively, SFFA) marked a seismic shift in equal protection law, dismantling the practice of race-conscious admissions that had existed for almost half a century The symposium sought to address the impact and ramifications of this historic ruling, and through four panels, seven essays, and a keynote speech from Janai Nelson, President of NAACP Legal Defense Fund, we would declare a success. Both on the day itself and the in the scholarship that emerged thereafter, thoughtful discussion and crucial debate occurred about how to best “march forward” in the shadow of SFFA. The pieces in this issue explore theories of constitutional interpretation and crisis convergence, analyze attacks on racial inclusion policies and racial consciousness, discuss the role of affirmative action and the impact of structural inequities, and underscore the foundational importance of standing and stare decisis. The Northwestern University Law Review is unsurprisingly proud to be able to contribute to these ever-more-important areas of scholarship. However, we would be remiss not to bring attention to the fact that the landscape of racial justice in this country has changed—and continues to change—dramatically
Generative Suspicion and the Risks of AI-Assisted Police Reports
Full text linkPolice reports play a central role in the criminal justice system. Many times, police reports exist as the only official memorialization of what happened during an incident, shaping probable cause determinations, pretrial detention decisions, motions to suppress, plea bargains, and trial strategy. For over a century, human police officers wrote the factual narratives that shaped the trajectory of individual cases and organized the entire legal system.
This practice is about to change with the creation of AI-assisted police reports. Today, with the click of a button, large language models (LLMs), a type of generative AI using predictive text capabilities, can turn the audio feed of a police-worn body camera into a pre-written draft police report. Police officers then fill in the blanks of a few facts and submit the edited version as the official narrative of an incident.
From the police perspective, AI-assisted police reports offer clear efficiencies from dreaded paperwork. From the technology perspective, ChatGPT and similar generative AI models have shown that LLMs are good at predictive text prompts in structured settings. Yet hard technological, theoretical, and practical questions have emerged about how generative AI might infect a foundational building block of the criminal justice system.
This is the first law review article to address the challenges presented by AI-assisted police reports. The Article first interrogates the technology, providing a deep dive into how AI-assisted police reports work. Promises of innovation are countered by concerns about how the models were trained; questions regarding error, hallucinations, and bias in transcription; and uncertainty over how the final police report will be impacted by the generative prompts. Issues including structure, timing, legal gap-filling, and factual gap-filling are all addressed, with an eye toward comparing this innovation to existing human report writing.
The Article also addresses theoretical questions about the role of the police report and contrasts two visions of a police report: a narrow, instrumental view and a broader accountability view. The goal is to show how a change in technology might also change the traditional role of the police report.
Finally, the Article explores how AI-assisted police reports will alter criminal practice, especially in misdemeanor and low-level felony cases where investigation and grand jury action are minimal. A police officer’s determination of what happened as a factual and legal matter directly impacts initial prosecutorial charging decisions and judicial pretrial detention decisions. In addition, the police report influences plea bargains, sentencing, discovery obligations, and trial practice. The traditional standards of reasonable suspicion, probable cause, and proof beyond a reasonable doubt—historically grounded in the detailed factual narratives drafted by police officers—are now being replaced by AI-generative suspicion. The open question is how reliance on AI-generative suspicion will distort the foundation of a legal system dependent on the humble police report
The Independence and Impartiality of The Court of Arbitration for Sport
No full textThis paper discusses the structure of the Court of Arbitration for Sport (CAS) and its process for adjudicating disputes by looking through the lens of the recent Jordan Chiles case. The intertwined history of CAS and the International Olympic Committee, CAS’s lack of structural independence, its policies that strongly favor one side in disputes, and its lack of sufficient conflict of interest procedures demonstrate that CAS is a flawed arbitral body that does not properly safeguard the interests of athletes. The landmark European Court of Human Rights case, Case of Mutu and Pechstein v. Switzerland, ruled that CAS was sufficiently independent, but flaws in the Court’s reasoning and the vigorous dissent suggest that it may not have definitively ended the issue as it purported to. The paper concludes by applying the principles discussed therein to the Jordan Chiles case and discussing the likely outcome of the appeal to the Swiss Federal Tribunal
How “Cooling Off” Periods Endanger The Vulnerable: A 50-State Study Of Mandatory Separation Periods In No-Fault Divorce
No full textMandatory separation periods in no-fault divorce neither advance their stated policy goals nor comport with contemporary understandings of marital dynamics, domestic abuse, or child welfare. Although mandatory separation periods are held out as tools to promote reconciliation and deter impulsive divorces, such rationales lack empirical support. Because family law in the United States is determined at the state level, this Article examines state laws that require couples to live apart in varying restrictive capacities before obtaining a no-fault divorce. To that end, this Article presents the first comprehensive 50-state study of such requirements. Research demonstrates that these laws do not correlate with reduced divorce rates, do not measurably produce reconciliation, and may even create perverse incentives that discourage attempts at reconciliation. This Article proposes that mandatory separation periods are both ineffective and harmful. Accordingly, it recommends that states with mandatory separation periods should follow Maryland’s recent example and repeal these requirements. It emphasizes that modern divorce policy must reflect evidence-based understandings of family stability, domestic violence risk, and the urgent need to protect vulnerable spouses and children