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Arrests: Legal and Illegal
Full text linkThe Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot. Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it does not always follow, at least not in the Supreme Court. Instead, the Court has ruled some arrests illegal despite the presence of probable cause, the Court’s concern there being with where the arrest took place. Specifically, the Court has ruled repeatedly that an otherwise legal arrest is illegal when performed in a residence that police illegally have entered. While not about what can count as probable cause, or count as an arrest, this Essay is about their relation. My intention is to demonstrate first that all arrests supported by probable cause are legal, regardless of where they occur or when the probable cause originates; and second that the legality of an arrest is an issue separate from the admissibility of evidence derived from an arrest. To that end, this Essay analyzes an undisturbed line of Supreme Court cases from 1980 to 1990—United States v. Crews, Payton & Riddick v. New York, Welsh v. Wisconsin, Minnesota v. Olson, and New York v. Harris— which when read together can make only misleading sense. By exposing the Court’s penchant for mischaracterizing legal arrests— including those performed with excessive force—as illegal, this Essay concludes that highlighting the proper function of probable cause within the law of arrests can reconcile a currently irreconcilable line of cases
Bespoke Regulation of Artificial Intelligence
No full textThe decision to regulate artificial intelligence (AI) has far reaching consequences. Determining how to address budding applications of AI technology should depend on their effects. This article describes how regulation should be carefully tailored to avoid harm while maximizing social welfare, building on Orly Lobel\u27s taxonomy of regulatory tools. Part I examines the foundational difficulties in governing AI, including industry influence in regulation and deficiencies in enforcement. Part II elaborates on Lobel\u27s framework, detailing the benefits and limitations of a variety of tools, such as voluntary standards, soft law mechanisms, and public-private partnerships. It describes how bringing in diverse stakeholders can achieve a more practical approach to AI governance but cautions against an evaluation of AI that overlooks its effects on areas such as access, autonomy, privacy, and the environment. Part III introduces the legislative carve-out as a potential instrument in AI governance. Using the 21st Century Cures Act\u27s exclusion of certain low-risk Clinical Decision Support (CDS) software from FDA oversight as a case study, it evaluates the carve-out\u27s implications for innovation, safety, and physician liability. The article concludes by advocating for a nuanced approach to AI governance that furthers innovation while mitigating risks, underscoring the importance of tailoring regulation based on the degree of likely harm
Legal Imperialism by Other Means: The Selective Extraterritorial Application of U.S. Law and the Denial of Human Rights Protection
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A Rising Pride Lifts All Boats: Canada Should Accept U.S. Transgender Asylum-Seekers and Codify Gender Identity as a Protected Ground for Asylum
Full text linkClosing the Digital Divide as a Public Health Mechanism: Exploring Technology Infrastructure Regulations and Trends in the Western Pacific and South-East Asia
Full text linkImplementing ABA Standard 303(b)(3): Positive Legal Education Through a Community of Inquiry
Full text linkAccording to William Adams, Executive Director of Legal Education and Bar Admissions at the American Bar Association (ABA), “Full implementation [of 303(b)(3)] [was] expected by 2023.” The revised Standard requires that law schools provide “substantial opportunities” for professional identity development (PID). Though the ABA’s Standards and Rules of Procedure for Approval of Law Schools and the related interpretations allow flexibility, the ABA left law schools without detailed guidance; without a unified professional identity concept, law schools across the country will implement a patchwork of programs, some stronger than others, that may curtail a global strengthening of the profession. Fortunately, scholars at the University of St. Thomas School of Law’s Holloran Center have conceptualized a socialization process that develops professional identity. Yet even that excellent work leaves the granular teaching methods to law schools’ and professors’ discretion. While prior efforts have addressed broader curriculum reform for PID, this Article builds on previous scholarship and offers an andragogy option for delivering PID at the classroom level. Adopting the Foundational Competencies Model (FCM) and Four Foundational Professional Development and Formation Goals (PD&F Goals), this Article revisits Professor Debra S. Austin’s call for a Positive Legal Education (PLE) movement. The Article suggests that, when combined with the Community of Inquiry (CoI) teaching framework and andragogy methods, positive legal education provides an ideal philosophy for meeting the PD&F Goals to achieve the FCM. The discussion includes suggestions for law schools to employ positive psychology in a CoI so that students can learn, grow, and flourish while in law school, on the bar exam, and in the profession. The appendices provide a timeline of major developments in legal education, a lesson plan template, and an example of the template in use. With a PLE/CoI andragogy model, the academy can improve law student well-being and help develop professional identities through achieving the PD&F Goals that establish FCM. Those professional strengths can trickle into law practice for a healthier profession with thriving attorneys who flourish