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The Uptake Puzzle in Expungement of Criminal Records
No full textExpungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.
This Article tackles the uptake puzzle in expungement of criminal records. Employing an access-to-justice framework and drawing from the literature on administrative burden, the Article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions. We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it. We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy. These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully. Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial. These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law. The Article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle. With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.
In addition, the Article offers two broad implications from our research that point the road forward on reform. First, we find that legislatures play a surprisingly dominant role in restricting access to the expungement remedy. By probing the underexplored role of legislatures, we surface a more complex treatment of how access barriers are layered across institutions to keep the expungement remedy out of reach. Second, we suggest that each state has developed a de facto “access policy” that serves an adjunctive role to substantive expungement policy. Without exception, these access policies are haphazard in their expression and work at cross-purposes with the stated goals of expungement. We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants. We also call on states to draw on the pluralistic access landscape we depict in this Article to turn toward access-promoting choices that increase uptake
Choice of Law in the American Courts in 2024: Thirty-Eighth Annual Survey
No full textThis is the Thirty-Eighth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2024
Combating the Colorblind Courtroom: Using Race-Switching to Make Racial Bias Salient
No full textIn criminal courtrooms across the country, well-meaning judges insist on running colorblind courtrooms — courtrooms in which the attorneys are not allowed to call attention to race. Many judges, including many U.S. Supreme Court justices, believe it is best to ignore racial difference and that noticing race will encourage racial discrimination. The problem is that colorblind courtrooms are likely to exacerbate, not ameliorate, implicit racial bias. Decades of social science research have demonstrated that making race salient helps decision makers treat similarly situated individuals of different races the same and that not calling attention to race results in decisionmakers treating Black individuals more punitively and White individuals more leniently.
Making race salient to lessen its negative effects may seem counterintuitive to those who believe in colorblindness. But it works. While there are various ways to make race salient, one method this Article recommends is a rhetorical device called race-switching. Race-switching in a criminal case encourages jurors to switch the races of the victim and defendant and consider the case with the races switched. If jurors come to a different conclusion about the defendant’s guilt than they did prior to the race-switch, this suggests they have allowed racial bias to impermissibly affect their decision making and they should go back to the drawing board and consider the case again. Even though race- switching has the potential to mitigate racial bias, most judges have resisted endorsing race-switching in their courtrooms.
This Article argues that judges overseeing criminal trials should give jurors a race- switching jury instruction upon the request of either party. Because most judges seem disinclined to give such an instruction, this Article argues for an equally important alternative: judges should allow attorneys to question jurors on racial bias during voir dire and they should also allow attorneys to utilize race-switching during opening or closing arguments. While other legal scholars have proposed anti-racial bias jury instructions, which educate jurors about the existence of implicit racial bias and warn jurors not to rely on racial stereotypes, their proposals have stopped short of giving jurors tools that can actually help them mitigate racial bias. This paper fills this gap and contributes to the existing literature on race in the criminal courtroom by offering courts a way to give jurors the means to proactively mitigate their own racial biases. Doing so will lead to a more equitable justice system for all
Feature Comment: Bid Protests in the U.S. Procurement System: Assessing Proposed Reforms -- Part I
No full textCongress is considering a number of proposed changes to the U.S. bid protest system—reforms which would generally raise barriers to bid protests, without making bid protests a more effective risk-management tool. At the same time, the procurement community (both in the U.S. and internationally) is coming to understand that public procurement is, at its heart, an exercise in risk management. This article surveys the various reform proposals against that evolving understanding, to assess whether the reforms under debate would reduce risks to competition and uncover management failures in the procurement system— the two core risk-reducing purposes of bid challenges
Policy Brief: The Federal Banking Agencies Should Withdraw Their Deeply Misguided Proposal to Weaken Leverage Capital Requirements for the Largest U.S. Banks
No full textOn July 10, 2025, federal banking agencies issued a proposed regulation that would dangerously weaken capital requirements for the largest U.S. banking organizations. The proposed rule would significantly reduce the enhanced supplementary leverage ratio (eSLR) requirements for U.S. global systemically important banking organizations (G-SIBs). If adopted, the proposed rule would allow U.S. G-SIBs to become woefully undercapitalized, as their predecessors were at the outbreak of the global financial crisis of 2007-09. The proposed rule would make U.S. G-SIBs highly likely to fail during future systemic financial crises, with catastrophic consequences for our financial system, economy, and society.
As explained in this Policy Brief, the federal banking agencies should withdraw the proposed rule for the following reasons: The proposed rule would contravene governing federal statutes, which require federal banking agencies to establish and enforce leverage capital requirements that are effective and binding components of capital standards for the largest U.S. banking organizations. Strong leverage capital requirements are necessary to prevent large, complex banking organizations from taking excessive risks and manipulating risk-based capital rules to justify dangerously low levels of equity capital. Federal bank regulators have permitted U.S. G-SIBs to reduce their leverage capital ratios to hazardously low levels by making excessive shareholder distributions, and the proposed rule would allow U.S. G-SIBs to become recklessly undercapitalized. The proposed rule would expand “too-big-to-fail” subsidies for U.S. G-SIBs and undermine the competitive viability of community banks and regional banks, thereby reducing the availability of credit to consumers, farmers, and small businesses. The proposed rule would increase the likelihood of a devastating systemic financial crisis by creating a sovereign-bank “doom loop,” in which the survival of U.S. G-SIBs would depend on the stability of the U.S. Treasury market and the credibility of the Federal Reserve System as monetary policy authority and lender of last resort
An Empirical Assessment of New Jersey\u27s Mistaken Imprisonment Act
Full text linkIn their article “Compensation for the Convicted Innocent in New Jersey: Problems and Recommended Solutions,” Professors D. Michael Risinger and Lesley Risinger masterfully recount the history and flaws of New Jersey’s Mistaken Imprisonment Act.1 The professors recommend concrete and common-sense amendments to the Act that, if enacted, would resolve statutory ambiguities, remedy bad public policy, and make more generous an Act intended to benefit the wrongfully convicted, but which often falls short of that goal.
This article will provide empirical and comparative context for the Risingers’ proposals. By examining why the claims of exonerees had been denied or never made, this article probes the extent to which these, or other, recommendations might benefit exonerees. Over twenty-five years after the passage of the Mistaken Imprisonment Act (the “MIA” or “Act”), we have sufficient history to evaluate the effectiveness of the Act and to it with that of other states. This article concludes that, on many metrics, the New Jersey statute performs better than most other state wrongful conviction compensation statutes. However, the Act is far from perfect. This data-driven and comparative assessment supports many of the Risinger proposals and may, in addition to their article, serve as a basis for needed reform
The Rise and Fall of Ambulatory Baselines in the Law of the Sea
No full textTraditionally, it has been understood under the law of the sea that baselines are ambulatory; that they move in association with any progression or regression of the physical coast. More recently, however, relevant State practice, the work of bodies such as the International Law Commission and the International Law Association, and in particular the 2025 advisory opinion of the International Court of Justice on climate change, have all indicated that baselines are not necessarily ambulatory, at least not in the context of physical changes resulting from climate-change related sea level rise. Rather, while a State must establish baselines in accordance with the rules of the 1982 United Nations Convention on the Law of the Sea, once it does so, there is no obligation to keep any nautical charts or lists of coordinates updated to reflect such physical changes in the coasts. One important issue is whether this new approach can be regarded now as settled law. If so, another important issue is what difficulties may arise in applying such law
Public Procurement Law Review Special Issue: Introduction and Three Articles on Public Procurement in International Trade
No full textThe Public Procurement Law Review (Sweet & Maxwell / UK) has published a special issue focused on international trade and procurement. Four of the pieces from the special issue, discussed below, are available in the attached.
In their introductory editorial, “Procurement Trade Agreements and Their Discontents,” Robert Anderson (Honorary Professor at the University of Nottingham School of Law, and Senior Fellow, Competition and Innovation Lab, The George Washington University, and former team lead at the WTO on the Government Procurement Agreement) and Christopher Yukins (GW Law) put the accompanying articles into context. They noted that the GPA, as the premier trade agreement, “is currently under an unprecedented degree of scrutiny on the part of one of its founding Parties, . . . the United States,” which calls for a “spirited defence . . . of the GPA and other trade agreements embodying government procurement commitments and their contribution to international governance and prosperity.”
In her piece, “Expansion of International Procurement Commitments: WTO Procurement Agreement Versus Free Trade Agreements,” Jean Heilman Grier (Djaghe, LLC), argued that the large numbers of nations that have committed to open their government markets to foreign suppliers “reflects the important role that government procurement plays in international trade.” She noted that while “the GPA will continue to add new members—albeit slowly, [free trade agreements (FTAs)] will provide the principal expansion of international procurement commitments, as they encompass both GPA parties and those outside the plurilateral agreement.” Although the GPA’s membership “may be outpaced by FTAs” which she described in detail, Jean Grier wrote that the GPA “will continue to serve as the international gold standard for government procurement provisions and the foundation for procurement rules across the globe.” She cautioned, though, that the “potential spoiler is the United States with President Trump’s America First trade policy undermining existing agreements and threatening withdrawal from the GPA and even the WTO.”
In their piece on bid protests and the trade agreements, “The GPA’s Domestic Review Procedures Through the Lens of North American Sub-Central Implementation: Flexibility or Incoherence?,” Derek McKee (Faculté de droit, Université de Montréal) and Daniel Schoeni (University of Dayton) noted that although the GPA “requires parties to give foreign suppliers access to independent and impartial fora where they can challenge public procurement decisions,” many U.S. states and Canadian provinces — though both countries are members of the GPA “have domestic review procedures that comply with some, but not all,” of the GPA’s requirements. They place part of the blame on ambiguities in Article XVIII of the GPA, and provide examples of North American sub-central review systems that embody these ambiguities.
The final piece, “An Empirical Study of Bid Protests by Disappointed Tenderers in US States,” by Daniel Schoeni (University of Dayton), was an extension of Professor Schoeni’s doctoral research at the University of Nottingham. In it, he reported on data he gathered on bid protests (challenges) in the states, and noted that bid protests are “at least as common at the state level as at the federal level.” Knowing that — that protests are a commonly available remedy for uncompetitive discrimination at the state level — could, Professor Schoeni noted, “foster confidence among foreign suppliers and thus encourage greater participation from abroad.”
This extract containing an editorial and three articles was first published by Thomson Reuters in the Public Procurement Law Review at the citation noted, and is reproduced with permission of the publishers
The Supreme Court Should Overrule Red Lion
No full textIn this essay Professor Pierce uses the Jimmy Kimbell incident as the point of entry for his argument that the Supreme Court’s 1969 opinion in Red Lion v. FCC is inconsistent with today’s reality and dangerous. He urges the Court to overrule it
The Re-examination Clause of the Seventh Amendment
No full textThis essay discusses the origins, history, and current interpretation of the Re-examination Clause of the Seventh Amendment to the U.S. Constitution. As Justice Joseph Story declared, the Re-examination Clause is separate from the right to civil jury trial in the Amendment’s Preservation Clause. The Re-examination Clause states that no fact tried by a jury shall be “re-examined” in federal court except by the rules of “the common law.” This provision had no counterpart in the state constitutions. The essay explains the methods of review of jury verdicts in English common-law courts in the late eighteenth century, focusing on the remedy of a new trial. Technically, these methods were not called appeals, although they functioned as such. The delegates to the Philadelphia Convention of 1787 assigned broad appellate review of federal and state courts to the U.S. Supreme Court, “both as to law and fact.” Many of the delegates believed such broad appellate jurisdiction was necessary to ensure uniform interpretation of federal laws and to prevent state courts, and state juries, from subverting federal law. James Madison was especially concerned about the latter problem.
The Anti-Federalists, especially Brutus, were alarmed at this grant of far-reaching appellate review to the U.S. Supreme Court. They believed such appellate review would undermine civil jury trial. The essay describes in detail James Madison’s effort to mollify the Anti-Federalists by drafting what became the Re-examination Clause, together with the modifications made in the First Congress. It explains the origins of the historical test for the Seventh Amendment in a case involving the Re-examination Clause. The historical test requires the federal courts to adhere to the practices of re-examining jury verdicts according to the common law of England in 1791, the year the Seventh Amendment was ratified. The Supreme Court had maintained a fairly strict interpretation of the historical test. Judgment notwithstanding the verdict, now known as judgment as a matter of law, was eventually permitted because of the English common-law practice of receiving a verdict subject to the judge’s opinion on law. Federal courts permit remittitur, requiring a plaintiff to agree to reduced damages or face a new trial, but not additur, requiring a defendant to agree to additional damages or face a new trial. The Supreme Court moved away from the traditional strict historical test in Gasperini v. Center for Humanities (1996), a decision that drew a strong dissent from Justice Antonin Scalia