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Crimes of the Past, Present, and Future: Considering the Global Problem of Microplastic Pollution and the Potential for Success within the Public Trust Doctrine
No full textMicroplastic pollution is a global and transboundary issue—one that international states have failed to properly address through regulatory bodies, multilateral treaties, and nonbinding conventions. Despite efforts by the international community to reduce plastic pollution, the problem has been exacerbated exponentially year over year by an ever-expanding plastic industry. The U.N. Intergovernmental Negotiating Committee on Plastic Pollution is currently leading discussions for the most promising solution: a binding treaty targeting the full lifecycle of plastic. Unfortunately, pro-plastic industry groups and lobbyists have been granted a seat at the table, and negotiations have yet to produce a final treaty draft.
Although legislation has been unable to manage this growing ecological disaster effectively, there still exists an available avenue to demand action through the courts. In the United States, the public trust doctrine requires states to hold certain lands and waters in trust for future generations. Under this doctrine, a litigant could allege that the state or the federal government violated the public trust when it permitted land and water held in trust to be overcome by microplastic pollution. This Comment will explore international and U.S. approaches to regulating microplastic pollution, why these approaches fail, and how a litigant can potentially use the public trust doctrine as a tool to demand government action
Rethinking Misdemeanor Incompetence
Full text linkThe competence to stand trial system is a “slow-moving tsunami” that has grown exponentially in recent years, capturing far more people than jurisdictions have the capacity to handle. As a result, individuals who are incompetent become trapped in pretrial competence purgatory, often detained in jail for months or even years. The harms of this system can be tragic. Competence detainees have died by suicide, starvation, and beatings. They are placed in solitary confinement, experience neglect and abuse, and deteriorate mentally and physically while confined. Often, these individuals are accused of misdemeanors. Often, they go through the competence process only to be returned to court and released without any connection to long-term support.
Scholars have long advocated for changes to this process. But even the most ambitious of these reforms will only shift outcomes at the margins. As long as the competence system remains in place, it will be overused, and it will continue to cause massive harms, both in dollars wasted and in human suffering.
This Article is the first to propose a more fundamental change: barring misdemeanor defendants from even entering the competence process. If a court finds a bona fide doubt as to an individual’s competence, that person would instead have the charges against them dismissed and would be transferred to treatment outside of the criminal system. This shift reduces the harms of the current competence system and shrinks its footprint, decreasing delays and freeing up funds that could be better spent elsewhere. This approach also recognizes that the criminal system simply does not work for many individuals with mental disabilities. Rather than tinker with its mechanics or create exceptions for this population, a better solution, exemplified by this Article’s proposal, is to abandon that system altogether in favor of noncarceral models
Survival of the Fittest? AI and its Different Regulatory Models
Full text linkProf. Peter Hay is a regular visitor to Budapest, Hungary. He gives excellent lectures on conflict of laws, with a particular focus on the nuances of jurisdiction. At the same time, many of us are avid readers of his German textbook US-Amerikanisches Recht. This textbook provides an overview of US law, from legal history to constitutional law and administrative law or criminal law. His interest and work which spans legal disciplines and legal systems, encourages me to welcome him with a paper on comparative law than a study of private international law.
This paper provides an overview of the broad interface between law and artificial intelligence (AI), including the risks that may be associated with the application of AI. It focuses on analysing the evolution of definitions of AI and the different regulatory approaches of the EU and the US. At present, administrative law seems to be at the forefront of responding to the challenge of AI, but private law (contracts, torts, intellectual property, conflict of laws) will not be able to avoid finding proper answers to the challenges of AI
\u3cem\u3eKatz\u3c/em\u3e\u27s Imperfect Circle: An Empirical Study of Reasonable Expectations of Privacy
Full text linkUnder Katz v. United States, the Fourth Amendment restricts government actions that infringe upon expectations of privacy that society recognizes as reasonable. This foundational test has long been criticized as circular, both because courts can shape the very expectations they seek to identify through their decisions and because governments can manipulate those expectations to expand the reach of their own power. But how do members of society decide what expectations are reasonable, and how do judges ascertain those expectations? And are expectations of privacy malleable even without deliberate manipulation?
This Article shows that the circularity critique is both understated and overstated. We identify six different potential elements of Katzian circularity, some of which have never been examined—particularly those relating to the stickiness of precedent concerning changing technology. To test the import of these circularity elements, we conducted two empirical studies, one survey and one experiment. We found that individuals’ beliefs about whether expectations of privacy are reasonable are highly influenced by data about what others think. Telling a person that a majority (versus a minority) of people believe a privacy right exists significantly increases their belief in that right to privacy. We also found evidence that people tend to view the investigative uses of new technologies as particularly violative of privacy expectations. Yet, we found little evidence beliefs are influenced by legal precedent or government action—with one important exception. It seems court decisions do not commonly shape society’s expectations, nor do they reflect society’s expectations.
The larger problem is that judges are likely to conflate society’s expectations with their own expectations. We show how turning the reasonable expectation of privacy inquiry into one hinging on scientifically-based research, rather than on judges’ unsound intuitions, would better fulfill Katz’s mandate and reflect societal consensus on these most fundamental constitutional principles. Altogether, this Article comprehensively charts the theoretical possibilities of Katzian circularity, empirically shows why and how the problem is likely to arise, and supplies a solution
No Harm, No Foul? The Recent Trend of Super Speed Chapter 11 Bankruptcy
Full text linkSuper speed chapter 11 bankruptcies have become a popular option for debtors seeking a quick restructuring process. Since In re Bluebird in 2006, courts have allowed debtors to complete a chapter 11 restructuring in record time, sometimes in less than a day. Such bankruptcies afford the debtor speed when the traditional chapter 11 timeline would effectively push the debtor into liquidation. In early super speed chapter 11 cases, the courts used the equity powers in section 105(a) of the Bankruptcy Code to analyze whether the circumstances warranted such speed. However, since 2016, courts have improperly asserted that the super speed prepackaged case is categorically statutorily authorized, abandoning an equity analysis. This legal trend subverts bankruptcy principles, providing debtors undue control over the case, denying creditors adequate notice, and improperly characterizing the court’s role as a mere facilitator of private bargaining.
This Comment explores: (1) the balance of early prepackaged cases between the debtor’s need for an expedited timeline and the creditors’ rights to notice; (2) how post-2016 super speed chapter 11 cases undermine creditors’ rights and corrupt bankruptcy’s balance of power; (3) the various causes and effects of this recent legal trend; and (4) why courts should embrace active case management and sua sponte review of the super speed chapter 11 case. Finally, this Comment concludes by proposing an equitable framework to guide courts in weighing the debtor’s need for an expedited timeline against the creditors’ rights to notice when reviewing super speed chapter 11 cases sua spont
Crisis Pricing
Full text linkExtraordinary times beget extraordinary measures. Multiple national emergencies during the past quarter century have generated a pitched debate as to whether, and to what extent, a crisis justifies deviations from fundamental legal rules. That debate has often focused on constitutional law and has produced sharply divergent views. Some theorists advocate a “business-as-usual” approach, eschewing emergency deviations, but societies rarely hold that course. More pragmatic scholars would permit some emergency measures but also defend fundamental social structures that have great value even during emergencies.
Emergencies, however, pose challenges not only to constitutional rules but to law generally, including the basic structures of law governing commerce. In ordinary times, most developed countries rely on markets rather than government edicts to control the exchange of goods and services. One great benefit of markets is that they distill vast quantities of information into easily understood signals—prices—that help individuals and firms decide what to buy and sell. Yet deeply held social norms against profiting from others’ hardships during emergencies frequently lead governments to impose price controls, antigouging laws, and other crisis pricing rules that supplant markets, destroy the informational value of market prices, and produce long queues, hoarding, and illicit side markets that can deepen rather than ameliorate the emergency.
More pragmatic approaches are needed for crisis pricing, and one promising approach is “zero-profit pricing”—an approach that can accommodate social norms against profiting off a crisis and yet still preserve the extraordinarily important informational function of market pricing. Zero-profit pricing has antecedents in common law crisis doctrines such as the necessity defense and general average contribution; may be more equitable and more efficient than existing approaches to emergencies (including a business-as-usual approach); and, most importantly, can minimize rather than exacerbate the misery caused by a crisis
Old Habits Die Hard: How the Maine Indian Claims Settlement Act Perpetuates Settler Colonialism and Denies Indigenous Sovereignty
Full text linkAround the time it was passed, the Maine Indian Claims Settlement Act of 1980 was considered by many to be a great victory for the Wabanaki Nations in Maine. But in the decades since, the Act has substantially hindered the Wabanaki Nations’ self-determination efforts. Frequent litigation between the Nations and the state of Maine, narrow interpretation by courts, and the state of Maine’s opposition to remedying the Act’s most harmful provisions have constrained the sovereignty of the Wabanaki Nations. As a result, the Wabanaki Nations have been largely excluded from the significant social, economic, and political gains that tribes throughout the United States have achieved. This Essay examines the circumstances leading up to the enactment of MICSA and the effects of its key provisions. The upshot? MICSA reinforces longstanding evils of settler colonialism and must be replaced with an agreement that appropriately recognizes the sovereignty of the Wabanaki Nations and allows them true self-determination
Our Progressively Brutal Constitution: A Legal Expressivist Account of the Excessive Force Doctrine
No full textThe Constitution forbids some forms of physical violence. However, the scope of its protection depends on the legal status of the person subjected to the violence. The Fourth Amendment protects a person outside the criminal legal system from a state actor’s “objectively unreasonable” force. A pre-trial detainee has a similar, though weaker, right under the Due Process Clause. But after conviction, a person’s right of protection from state violence has nearly vanished: the Eighth Amendment prohibits only force applied “maliciously and sadistically for the very purpose of causing harm.” Rather than meaningfully limiting state violence, this doctrine constructs a constitutional framework where legal protections diminish as a person moves deeper into the criminal legal system. In doing so, it exposes a progressive brutality embedded in our constitutional order.
This Article makes two primary contributions. First, it reconceptualizes the constitutional doctrine governing state violence not as a series of single- Amendment-focused decisions but as one interconnected doctrine. This doctrine is inextricably intertwined with the criminal legal system, operating within what I call the “policing-punishment pathway”—the continuum of state violence from initial police contact to post-conviction imprisonment.
Second, this Article is the first to examine the force doctrine through a legal expressivist lens. In doing so, it contends that the law of force not only reflects but also reinforces a social hierarchy of bodily worth. Though framed as a safeguard for individual rights, the constitutional force doctrine rationalizes and entrenches the danger and dehumanization at the core of the criminal legal system. This Article calls for either an honest reckoning of the structural violence embedded in our constitutional framework—or a radical reimagining of the doctrine to reject its brutal logics