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Battling the Clock: Retroactive Remedies and Constitutional Rights in Veterans’ Benefits
No full textFor Official Violence, The Devil\u27s in the Dehumanizing Details
No full textIn Excessive Force in Prison, Professor Sharon Dolovich tackles the shortcomings of the Eighth Amendment’s cruel and unusual punishment doctrine to govern uses of official violence against prisoners. She argues that law enforcement officers owe a duty of care and protection to incarcerated people, but that duty of care and protection is undermined by the dehumanization and demonization of prisoners. Professor Dolovich thus advocates for shifting the doctrinal standard for excessive force under the Eighth Amendment to one based on objective reasonableness, paired with jury instructions explicitly reminding jurors of incarcerated victims’ humanity. To counteract the vagaries of such an objective reasonableness standard, she also advocates for importing necessity and self-defense concepts into the Eighth Amendment’s excessive force doctrine.
In this response to Professor Dolovich’s groundbreaking article, I explicate and expand upon the importance of her analysis and suggested interventions in several ways: the importance of her observations and suggested interventions to all acts of official violence by law enforcement (whether governed by the Eighth Amendment, Fourteenth Amendment, Fourth Amendment, or more vague concepts of Due Process); the special intersectional danger faced by people of color and people with disabilities when it comes to official violence; and a call to policymakers to adopt her suggested interventions without waiting for courts to decide that they are constitutionally mandated
From Oppenheimer to Trump: An Exploration of the American History of Prosecution and Persecution in Classified Information Dissemination
No full textRobert Oppenheimer, the father of the atomic bomb, was stripped of his security clearance before documents were properly classified and without access to exculpatory evidence in what amounted to a show trial. The modern, peace-time classification system has expanded into an arguably uncontrollable leviathan that has proven unable to be curtailed by either political party despite bipartisan support. The usage of the related Espionage Act to enforce the ever-growing secrecy state has a problematic history of being utilized in politically motivated prosecutions in which defendants still face an uphill battle to gain access to exculpatory information. These prosecutions, under the procedural framework of CIPA, implicate constitutional issues such as the First Amendment and Due Process Clause of the United States Constitution, and ultimately serve to squash dissent and discourage whistleblowing and activism
The Clash of Security and Commerce: Analyzing the Impact of U.S. Foreign Trade and Investment Regulations Through the Lens of the TikTok Controversy
No full textThis Article examines the evolving tension between national security and economic globalization in U.S. foreign trade and investment regulation. Using the TikTok controversy as a focal point, it argues that American trade regulation has undergone a decisive transformation—from promoting international integration to prioritizing the protection of strategic technologies, data, and supply chains against perceived adversaries, particularly China. The analysis traces this shift from early tariff legislation, through the liberalizing trade era of the mid-twentieth century, to recent measures such as the Foreign Investment Risk Review Modernization Act of 2018 and President Biden’s executive orders on inbound and outbound investment. The Article situates the TikTok litigation within this broader evolution, showing how CFIUS reviews, expanded export controls, and national emergency powers under the International Emergency Economic Powers Act have redefined the balance between open markets and security imperatives. It contends that the Supreme Court’s 2025 decision upholding TikTok’s divestiture marks a watershed in the constitutional and policy limits of economic statecraft, reflecting a new paradigm in which U.S. commercial regulation functions not merely as an economic tool, but as an instrument of strategic defense
Racial Discrimination in Retailers\u27 Willingness to Accept Returns: A Field Study
Full text linkBlack Americans have long faced discriminatory treatment while shopping in retail establishments, including, most notably, being subjected to increased surveillance, inconsistent pricing, and inferior customer service. Little attention, however, has been paid to other post-purchase aspects of retail transactions. Specifically, do Black Americans receive the same treatment as white customers when it comes to performing sellers’ formal policies or contracts? While it is understood that salespeople are often given discretion to deviate from standard form contracts, sometimes departing from the literal terms to satisfy consumers, there has been a notable absence of systematic exploration into how salespeople exercise this authority and whether racial disparities manifest in the exercise of such discretion. This Article reports on an original audit study that involved sending testers who were matched on all observable characteristics other than gender and race into downtown Chicago stores to return prepurchased items. All of the audited stores had official policies that required a receipt as a prerequisite to a return, but the testers did not present receipts for the items.
The findings revealed stark racial disparities: Black shoppers, both women and men, encountered more frequent denials and were less likely to be offered refunds than their white counterparts, with white women receiving the most favorable treatment. These disparities persisted and became even more pronounced after the testers asked to speak to management. Insights gleaned from novel interviews with store clerks suggest that these discrepancies stem from ingrained biases that associate race with social status and expected behavior.
In response, this Article outlines several recommendations that would reform the legal landscape to more robustly combat retail race discrimination in contractual performance. These include broadening the reach of existing legislation to explicitly outlaw racially discriminatory practices in the execution of seller contracts and incentivizing sellers to implement strategies that have been shown to reduce bias in other decision-making environments
The State[s] of Confession Law in a Post-Miranda World
Full text linkPolice interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.
This Article catalogues four different state approaches to regulating confession law: procedural protections, substantive restrictions, rules of adjudication, and changes in police approaches to training. It then draws conclusions about the relative effectiveness of these different approaches in light of currently available empirical, psychological, and sociological research. It argues that substantive restrictions on interrogation practices through rules with robust remedies are the best way to promote lasting change and restore legitimacy to what is currently a broken system. Recognizing that policymakers in different states and localities face different political climates, the Article concludes by outlining a graduated set of reforms that permits policymakers to identify what would be most feasible and effective in their respective jurisdictions
Yet Another Elected Power: A Case for Randomly Selected Forepersons
Full text linkMost United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury’s verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position
The War on Trade: Applying the WTO Security Exceptions to Economic Security Measures
Full text linkThis article examines the efficacy of the WTO treaties’ security exception provisions in curbing abusive appeals to national security to justify otherwise impermissible trade measures. It specifically explores whether GATT Article XXI and its sister provisions establish objectively discernible prerequisite conditions for their invocation, how far Member discretion extends in defining “essential security interests,” and whether the WTO dispute system offers sufficiently objective legal standards to prevent abuse of the security exceptions.
Building on existing scholarship, this article employs a comprehensive interpretive analysis of all available means under the Vienna Convention on the Law of Treaties (VCLT) and integrates not just the landmark Russia – Traffic in Transit report, but also the recent United States – Steel and Aluminum and United States – Origin Marking cases of December 2022. This interpretive exercise identifies a uniform analytical framework running through each WTO Panel report reviewing invocations of the security exceptions and applies that framework to critique the U.S. position on the issue. Under this interpretive framework, this article ultimately determines whether and to what extent the WTO security exceptions including GATT Article XXI(b)(iii) justify discriminatory and anti-competitive trade measures purportedly imposed in the name of “economic security.