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Requiring What’s Not Required: Circuit Courts Are Disregarding Supreme Court Precedent and Revisiting Officer Inadvertence in Cyberlaw Cases
Get PDFAs the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence of officer inadvertence, despite its lack of necessity, are properly doing so as a means of analysis for cyber cases to more suitably adjust to the searches of computers and related technology. The Tenth Circuit has knowingly disregarded Supreme Court precedent, and this continues its disagreement with the Fourth Circuit. This perpetuates a circuit split that should be resolved by the Supreme Court. In anticipation of a judicial resolution, this article was written to outline the problem and explain the positions of the circuits that have addressed this issue. Part II will provide an overview of the fourth amendment, focusing on the history of the plain view doctrine and the Supreme Court’s examination of officer inadvertence when analyzing plain view search cases. Part III shifts the focus into the modern era of cyber law cases and how those cases involving plain view searches have been analyzed. Particularly, this section explains and illustrates that various circuit courts of appeal have been explicitly choosing not to follow Supreme Court precedent when analyzing cyber law cases. Part IV examines the Supreme Court’s acknowledgement of differences between cases involving technology and cases that do not have a technology component. This article takes the position that the circuit courts that have deviated from prior Supreme Court precedent are consistent with what the Supreme Court would likely rule if the issue of officer inadvertence in plain view cyber-related searches arose before the Court today. Part V explains the need for guidance from the Supreme Court to resolve confusion faced by circuit courts deciding cases involving cyber-related searches subject to the plain view doctrine
Multiple Choice: How Instant Runoff Voting Improves Redistricting Under the Voting Rights Act
Get PDFAs currently interpreted, Section 2 of the Voting Rights Act (“VRA”) can be a double-edged sword for minority representation. Although it gives protected minority groups their own majority/minority districts, this can dilute minority influence in other districts. Recently, however, many jurisdictions have begun to adopt Instant Runoff Voting (“IRV”), a ranked-choice voting system where voters rank multiple candidates in order of preference. By letting voters express support for multiple candidates, IRV provides useful information about the behavior of minority groups that courts can use when enforcing the VRA. Specifically, ranked-choice voting systems can better show when a winning candidate supported by a multi-racial coalition was preferred by members of one racial group. Courts can use this information in redistricting cases to help minority groups elect their preferred candidates—even when the minority group does so as part of a multi-racial coalition, in a district where minorities are less than a majority of the voting population. These “crossover” districts, enabled by IRV, help the VRA accomplish its goal of ensuring that minority voters can “elect representatives of their choice.
Land Costs And New Housing
Get PDFRestrictive zoning limits housing supply, which (according to the law of supply and demand) increases housing costs. But some commentators argue that more permissive zoning would actually increase housing costs by increasing land costs. This article points out that if the latter claim was true, land costs would have risen in places that allowed lots of new housing and fallen in more restrictive regions such as San Francisco. In fact, land costs increased in both types of metro areas. More importantly, overall housing costs increased more rapidly in more restrictive metros
Systemic Risk of Contract
Get PDFComplexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this touted and now-ingrained drafting approach introduces new forms of the very costs it seeks to minimize. The Article is the first to identify the types of risks introduced by modularity at the intra-contract level, among provisions, and the inter-contract level, among agreements that constitute deals. The Article groups these risks into three categories: First, “intertextualism,” which occurs when the operation of a discrete, or even standard, provision seems clear in isolation but is made uncertain by the presence of other discrete terms. Second, “modular drift,” which occurs when drafters transplant provisions specific to one transactional context into another transactional context, introducing uncertainty. Third, “latent triggers,” which occur when compartmentalization invites error or obscures a nuance in the interaction among discrete provisions. The Article urges courts to articulate distinctions between contract types and offers tools to contract drafters to mitigate uncertainty. It also makes a theoretical contribution with implications for contract doctrine and contract innovation. It shows how modularity can disrupt seemingly stable, standardized provisions, diminishing their certainty and imposing information costs on future drafters who seek to rely on precedent provisions or agreements. It thereby identifies a critical dimension of contract risk that complicates the balancing of standardization and private choice in contracts
Robert Cover’s Love of Stories: A Rumination on His Wanting to Discuss the Brothers Karamazov with Me Across Five Conversations During the Last Five Years of His Life, with an Application to the Chauvin Murder Trial of 2021
Get PDFThe field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of 1986. On each occasion, Bob wanted to spin out ideas we were developing together about Dostoevsky’s last masterpiece, The Brothers Karamazov (“The Brothers”), and in these pages, I want to engage the largest issues provoked in Bob’s mind by that text: law, religion, and the potential undermining of sound traditions through “revolutionary” interpretive distortions
Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore?
Get PDFThe rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world
Reconsidering the Nomos in Today’s Media Environment
Get PDFToday’s media landscape is wholly unlike that which existed when Cover first discussed narrative and the nomos; specifically, the status of television as both a cultural messenger and object of scholarly study has changed significantly. Accordingly, this article contemplates narrative in the contemporary media environment, specifically, television as an essential source of narratives. To enhance understandings of the roles television narratives play and which narratives play a role, this article employs an empirical perspective. Surveying Media Theory, it outlines research on television effects, including when and why television’s representations of law can impact audience attitudes, behaviors, perceptions, knowledge, and judgements. It then summarizes and explores recent changes in the media environment – digital platforms and streaming content, unprecedented audience selectivity and fragmentation, cable news differentiation, and Twitter – and considers what impacts these have on audiences and the nomos
Which Transportation Technologies Do We Want?
Get PDFA review of Todd Litman\u27s book, New Mobilities- Smart Planning for Emerging Transportation Technologie
Fat Rights, Public Health Oppression and Prejudice, and the “Obesity Epidemic”
Get PDFThe pervasiveness, frequency, and intensity of fat shaming, bullying, and harassment experienced by fat people is well-documented, and three quarters of the American public support antidiscrimination protections for fat people. Yet fat people generally remain unprotected from discrimination under federal and state law in all but two jurisdictions. This Article traces these problems to the agendas of public health leaders, organizations (the Centers for Disease Control and Prevention and the World Health Organization), and associated industries, which are fighting an “obesity epidemic.” It describes some of their fat-shaming strategies and persistent public-health-crisis framings, as well as sensationalized presentations of research to attract news attention, boost visibility, and attract more funding for research and/or support for anti-obesity interventions. These behaviors ensure profits for a $50 billion diet industry and a market for prescription weight loss drugs. Yet almost all medical and environmental interventions for weight loss have little to no evidence of effectiveness. Environmental interventions are also opposed by the public, fat people, and especially fat rights advocates, who describe these interventions and the rhetoric used to generate support for them as stigmatizing. In addition, they ignore discrimination against fat people and facilitate inaction on solutions to extend fat people antidiscrimination protections. This inaction in turn facilitates discrimination against individuals who are disproportionately Black, Latinx, poor, women, and persons with disabilities. This Article argues that politicians and advocacy leaders from marginalized populations will serve their constituents best by extending fat people antidiscrimination protections and placing fat rights advocates and fat people in charge of the policies purported to benefit them
This Is Your Captain Speaking, Please Remain Physically Restrained While the Robbery Is in Progress
Get PDFThis note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the use of threats or demands in conjunction with a firearm during the course of a robbery is insufficient to trigger the physical restraint sentencing enhancements.The note opens with a hypothetical to set the stage, discusses the history and mechanics of the Federal Sentencing Guidelines, and then examines the relevant cases of each circuit. Further, this note advances three primary arguments for a plain language interpretation of “physical restraint.” First, the word “physical” modifies the verb “restraint” thereby limiting imposition of the enhancement to types of restraint that are in fact physical. Second, the sentencing enhancements for threats of death and use of deadly or dangerous instrumentalities appear in the same section as the physical restraint enhancement and would more adequately account for the type of behavior currently being scrutinized under the physical restraint enhancement in certain circuit courts. Thus, circuits of the first camp are applying the incorrect enhancement. Third, permitting reclassification of conduct through broad interpretation in order to trigger the physical restraint enhancement approaches the outer limits of the rule announced in Blockburger v. United States. Additionally, the analysis section of the note proposes an amendment to the sentencing guidelines to account for the psychological restraint which circuits of the first camp have improperly classified as physical. Ultimately, the note argues for national adoption of the Second Circuit’s test in United States v. Taylor,as the proper method for determining whether physical restraint has occurred to ensure appropriate application of the sentencing enhancement. Applying the Taylor Test to the opening hypothetical, it becomes clear that the offender’s conduct would not trigger the sentencing enhancement.
The note concludes with an overview of the Sentencing Guidelines’ original goal of bringing national uniformity to sentencing across the nation and discusses how the differences in interpretation have led to the opposite result. Finally, the note once again proposes the national adoption of Taylor in order to balance uniformity with proportionality and give effect to the notion that “words should mean something.