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The Automated Fourth Amendment
Get PDFCourts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible.
Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests that hang in the balance. After revealing the infirmity of current case law, this Article argues for a doctrinal shift to require assessment of policing technology reliability as part of Fourth Amendment reasonableness determinations and offers a framework that would allow courts to do so. Such a shift may prevent further erosion of privacy rights, particularly for Black, Latine, and other marginalized communities subjected to rampant Fourth Amendment abuses. Recognizing that even a necessary doctrinal shift cannot resolve every concern related to ever-growing police reliance on automated technologies to justify seizures and searches, this Article also goes beyond a focus on doctrine to recommend targeted policy interventions where Fourth Amendment intrusions do not result in criminal litigation
Narrowing the Police Accountability Gap in Civil Rights Prosecutions
Get PDFThe absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. Federal legislative efforts to reform Section 242 have been unsuccessful, and the Supreme Court seems unwilling to revisit its authoritative—but perhaps unworkable—interpretation of the statute in Screws v. United States. State equivalents fare no better, as they utilize comparable standards that present judges, juries, and prosecutors with similar roadblocks to accountability.
To remedy the impotence of Section 242 and its sub-federal offshoots, this Comment argues that state legislatures should impose criminal liability upon law enforcement agents who “recklessly” deprive others of their state constitutional rights. By lowering the mens rea required for liability and incorporating the expansive protections of state constitutional jurisprudence, this proposal criminalizes a much wider range of police misconduct than is currently prohibited. However, this change would still protect officers who reasonably adhere to the law, allowing those individuals to do their jobs without the fear of unwarranted reprisal. A recklessness standard would also allow local judges to escape the Supreme Court’s amorphous definition of willfulness in Screws, which was frequently invoked by state courts seeking to interpret Section 242’s state-level analogues. Although the expansion of criminal liability comes with many downsides, it is much needed in the realm of police misconduct, where violations routinely occur without any measure of accountability at all. For these reasons, this Comment asserts that states need a broader, more predictable, and more civilian-friendly criminal deprivation of rights statute to deter unconstitutional police behavior
Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts
Get PDFDoes the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what one would expect from a panel with homogeneous partisanship? Finally, does the size of these potential partisan effects change over time in a way that would be consistent with partisan polarization on the courts? We find that partisanship does, in fact, structure whether earlier opinions are followed and that these partisan effects have grown over time—particularly within the subset of cases that we believe are most likely to be ideologically salient. Since legal doctrine is developed by building upon or diminishing past opinions, these results have important implications for our understanding of the development of the law
Disillusionment of Discharge: The FRESH START Through Bankruptcy Act
Get PDFAlthough its roots precede the twenty-first century, the student loan debt “issue” in America has evolved in recent years into a full-blown “crisis.” Recently surpassing credit cards and auto loans, student loan debt is the second-largest type of consumer debt in the United States, behind only mortgage debt. Prior to the Higher Education Amendments of 1976, bankruptcy provided an avenue through which student loan debt could be discharged. A series of legislative amendments, however, led to the imposition of 11 U.S.C. § 523(a)(8), which bars the discharge of student loan debt absent a showing of “undue hardship.” Courts have constructed the “undue hardship” standard into a major hurdle for student debtors seeking a fresh start through bankruptcy.
For most courts, demonstrating “undue hardship” requires a debtor to satisfy three prongs of a strict elements test. Referred to by some in the judiciary as the “certainty of hopelessness” standard, the test has come under scrutiny in the legal community. Many, including federal judges, the American Bar Association, and the American Bankruptcy Institute, have called for reform to better effectuate the relief sought by student loan debtors.
This Comment posits that the proposed FRESH START Through Bankruptcy Act of 2021 is the most viable solution to the student loan crisis and would address it in two primary ways. First, it would eliminate the need for student loan borrowers to satisfy the “undue hardship” standard, and would make discharge attainable—provided the debtor has already been in repayment for at least ten years. Second, it would address the underlying issues of “credentialism” and increased tuition costs, at least in part, through a “clawback” provision aimed to increase institutional accountability
Anti-Liberal Rights Retrenchment as a Threat to the Rule of Law
Get PDFThe Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the half-century old constitutional right to reproductive choice, is only the most prominent example of a global series of attacks on rights of personal, sexual, and family autonomy. The attacks on LGBTQ+ rights by the Christian nationalist governments of Hungary and Poland are another important example. A cadre of anti-liberal scholars and public intellectuals such as Patrick Deneen, Sohrab Ahmari, and Adrian Vermeule serve as the intelligentsia within this global reactionary movement, advocating for the direct importation of far-right values into the law of western states on the basis of a religious, anti-liberal conception of community and public identity.
In common parlance, the victims of this attack on egalitarian legal rights sometimes say that they are excluded or erased or treated as sub-human. That response is intuitively plausible—it is easy to think, for example, that taking away gay rights excludes LGBTQ+ individuals from the political community by communicating that they lack the support of their societies for their personal relationships and individual identities. But this idea is somewhat undertheorized in the scholarly literature.
This Essay contributes to the theoretical development of the idea of rights-retrenchment as exclusion. Reading together Patricia Williams and G.W.F. Hegel, it offers an account of how liberal legal rights support the individual and social identities of those who enjoy them, and how those rights are particularly critical to members of socially subordinated groups. It is concluded that one reason to value the rule of law, in its facet as a demand for the stable protection of individual rights, is to protect this identity-supporting function. This Essay is thus both a critique of the modern anti-liberal movement and an updating of the critical race theory defense of rights for the present era of reaction and retrenchment
A (Sovereign) License to Kill? The Boundaries of Jurisdictional Immunities for State-Sponsored Crimes
Get PDFThanks to their immunities, states are normally not subject to civil proceedings before foreign courts. While some may argue there are exceptions to this principle, in particular regarding acta de jure gestionis, the International Court of Justice refused to recognize the existence of further limitations to this principle in the Jurisdictional Immunities of the State case. However, even after the judgment, several questions remain unresolved. This article clarifies the boundaries of civil immunities in the field, and especially vis-à-vis state-sponsored crimes. This article finds that state-sponsored crimes may qualify as sovereign acts and that contradiction with jus cogens is not enough to lift immunity. However, this article argues that forum courts may always hear a case where harmful acts are committed by a foreign state in the national territory, even if armed forces are involved (i.e. the “territorial tort exception”). In addition, this article turns to human rights treaties (like the ECHR) and demonstrates that a contracting state has no material jurisdiction under the convention if the immunities of a foreign state are safeguarded and for acts committed outside the forum. If jurisdiction is found to exist, however, then the lack of a viable alternative remedy would generally result in a breach of the right to a fair trial
