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Circuit Personalities
Get PDFThe U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality and other rule-of-law values and, in so doing, serve as a critical counterweight to the pernicious nationalization and partisan politics of federal judicial appointments.
Making use of both empirical measures and interviews conducted with eighteen U.S. Court of Appeals judges, this Article shows how same-circuit appeals judges forge a unique and consequential bond with each other. This is true of Democrat and Republican appointees; it is true of a just-appointed judge or a senior-status judge. By mitigating national partisan forces, “circuit personalities” facilitate the very model of judging employed by the U.S. Courts of Appeals—one that assumes any random panel of three can deliberate and deliver a correct result for the court as a whole. This model of judging simply does not work if the judges fall prey to “my team / your team” impulses—forces which are growing steadily as a byproduct of the new nationalization of judicial appointments. To be sure, judges are ideologically divided, and partisan divisions among them are sometimes inevitable. But the best way to prevent those divisions from overtaking appellate courts altogether is for judges to invest in the ties that bind them—to celebrate the local and resist growing calls that they become “partisan warriors” in a national war
The Case for Local Data Sharing Ordinances
Get PDFCities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig workers. These companies, however, sometimes argue that sharing this information violates their users’ privacy rights and their own privacy rights, because this information is theirs; it is part of their business records. The question is thus what those rights are, and whether it should and could be possible for local governments to access that information to advance equity and sustainability, without harming the legitimate privacy interests of both individuals and companies. This Article argues that within current Fourth Amendment doctrine and privacy law there is space for data sharing programs. Privacy law, however, is being mobilized to alter the distribution of power and welfare between local governments, companies, and citizens, within current digital information capitalism to extend those rights beyond their fair share and preempt permissible data sharing requests. This Article warns that if the companies succeed in their challenges, privacy law will have helped shield corporate power from regulatory oversight, while still leaving individuals largely unprotected and submitting local governments further to corporate interests
Beliefs, Information, and Institutions: Public Perception of Climate Change Information Provided by Government Versus the Market
Get PDFDespite scientific consensus over the threat posed by climate change, governmental actions remain modest or stalled, often because of profound societal polarization: more liberal individuals tend to accept climate change as real, anthropogenic, and as posing a substantial (if not existential) threat, while more conservative individuals tend to doubt such assertions. The standard explanation for this phenomenon is that liberals tend to believe government-provided information—as information about climate change tends to be—while conservatives tend to doubt it. Commentators suggest that market-generated climate change information would more likely sway conservatives.
But this assertion lacks any empirical support. This Article explores this theory by investigating the link between institutional source of information and personal beliefs using a survey-based experiment. While varying the institutional source generates statistically significant effects, the direction of these effects goes against commentators’ assumptions. Market-generated climate risk information is associated with less perceived credibility of the information, a lower level of trust in the informational source, and a lower confidence in the belief in climate change existence and its human attribution. The first two of these effects predominate amongst conservatives, while the latter effect is confined to liberals. These effects suggest that market-generated climate risk information will not have the desired impact of persuading conservatives but may perversely damage the confidence of liberals—whose views more closely track the predictions of climate scientists in the first place. The results raise questions about the need to move beyond governmental institutions to effectively convey climate science information and about the use of corporate environmental, social, and governance disclosure as a means to sway public opinion
A Proposed Tourism Cap on the Galapagos Islands: Beyond the Wildlife
Get PDFScientists have pleaded to both Galápagos and Ecuadorian officials to impose a tourism cap on land-based tourism to protect the biodiversity of the Islands. However, these proposals have offered little to no means of addressing the economic concerns or offsetting the impact a tourism cap would have on key revenue-producing industries and locals. Because of this, proposals for land-based tourism caps have gained little traction within Ecuador and the Galápagos.
This Note should serve as a guide for assessing what tourist restrictions are possible and how those restrictions would be implemented. Part I begins with an overview of the environmental problems the Galápagos Islands are experiencing due to tourism and also how these problems are exacerbated by other factors such as climate change. Included in Part I is an explanation of the plausibility of a tourism cap and why the Galápagos or Ecuadorian governments would impose a tourism cap against possible local opposition or GDP loss given the right conditions. Part II addresses why a land-based tourism cap is necessary to preserve the biodiversity on the Islands and why current regulations are insufficient to address the environmental problems identified in Part I. Part III compares the markets for commodities and services on the Galápagos Islands to similarly situated islands with tourism-based economies. These comparisons will prove prices are below market value on the Islands and how this market failure can be used to implement a tourism cap. Part IV identifies how different economic mechanisms, including a tax on businesses, would work in relation to the tourism cap in order to address both the environmental and economic concerns on the Islands. Ultimately, even if the policies in this Note are not adopted, it should serve as an awakening to environmental policymakers that in order to successfully mitigate environmental harm, they must consider more than the wildlife.
This abstract has been taken from the author\u27s introduction
The Collective Right Endures: Pre-Heller Precedent and Our Understanding of the Modern Second Amendment
Get PDFPrior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.
After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms, discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these competing viewpoints did not fully encompass or address the nuances of federal precedent. Although the credits may have rolled on the collective versus individual right discussion in the public forum, it left much undiscussed in defining the scope of the Second Amendment.
This Note argues that the dichotomous split in opinion over the Second Amendment pre-Heller led both camps of scholars to overlook particularly important aspects of the collective right that survived Heller in federal precedent through two cases: Presser v. People of the State of Illinois and United States v. Miller. Because Presser and Miller are binding precedent, their holdings still offer insight into our modern understanding of the Second Amendment. Taken together, Presser and Miller clearly and expressly limit the federal government’s ability to regulate firearms when state governments can show a reasonable relationship for militia purposes. These cases essentially give individuals and states a justification to challenge federal assault weapons bans and other regulations, so long as the parties can present a reasonable relationship to a militia function. They also suggest limitations on the reach and extent of the modern individual right by reinforcing traditional areas of state firearm regulation. Although Presser and Miller do not sit neatly within the bounds of the pre-Heller arguments, these cases represent surviving aspects of the collective right framework that have relevant, modern, and practical uses in shaping our use of the Second Amendment.
This abstract has been adapted from the author\u27s introduction
Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion for Terry Stops Based on Vague or Discrepant Suspect Descriptions
Get PDFIn Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers across the United States employ this powerful tool extensively, performing millions of Terry stops each year.
But what if that suspect description is vague, consisting of few descriptors? Or what if there are many discrepancies between the description given and the appearance of the person the officers eventually stop under suspicion that he is the perpetrator? When reasonable suspicion to stop and frisk someone is based largely on a physical description of a criminal suspect, how “particularized” must that description be?
This Note examines this specific reasonable suspicion factor: the resemblance of a person stopped under Terry to an active suspect description of someone who has very recently committed a crime. Exploring this scenario, this Note seeks to analyze courts’ varying tolerance levels for vague or discrepant suspect descriptions creating reasonable suspicion, discuss the detrimental and unconstitutional impacts of an overly broad standard for this reasonable suspicion factor, and propose a new standard for courts to employ