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The Noisy Silent Witness : The Misperception and Misuse of Criminal Video Evidence
Get PDFThis Note examines recent developments in the research of situational video evidence biases. Part I examines the current and growing body of psychological research into the various situational biases that can affect the reliability of video evidence and the gaps in this research that require further attention from researchers and legal academics. Because these biases do not “operate in a vacuum,” Part I also examines some of the recent and exciting research into the interaction between situational and dispositional biases. Part II examines the development of camera and video processing technology and its limitations as a means of mitigating such biases. Part III explains how such research could be used to develop heuristics to better assess the admissibility or presentation of video evidence and the need for greater judicial scrutiny of video evidence. This Note concludes by highlighting the potential research about the situational factors affecting the perception that video evidence has for producing insights useful for practitioners conducting criminal trials and municipalities and police forces adopting video technology, and closes with suggestions for further research
On Yang\u27s Proposed Federal Tax on Subnational Tax Incentives
Get PDFThis essay analyzes presidential candidate Andrew Yang’s proposal to tax subnational tax incentives for companies at a rate of 100 percent
The Institute for the Future of Law Practice: A New Narrative for Legal Education and the Legal Profession
Get PDFThe mission of IFLP is to produce more legal professionals who have strong legal knowledge plus foundational training in allied disciplines — in other words, “T-shaped” legal professionals.
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You look down at your smartphone and see that you just got a text from a close family relative. They are asking to schedule a phone call.
The next line reads, “I’m thinking about going to law school.”
Well, if you read PD Quarterly, you’re likely a logical person to seek out for advice. You’ve got some time to think about it. What are you going to say?
Whatever your counsel, it is likely to be a mix of your views on where the legal industry is today (perhaps quite a bit different than when you started) and where you see the legal industry going over the next 10 to 20 years.
Let’s face it — this is a hard assignment to get right.
Over the years, many of my friends and colleagues have been placed in this situation. And a good number of them have concluded that the best course of action is to pass the buck to me, since much of my research focuses on the economics and structure of the legal profession.
When I picked this research area nearly two decades ago, the job was primarily to describe the functioning of the legal market. This worked wonderfully well to build a tenure file, particularly since the mid-2000s were a period of significant change and disruption for both lawyers and law firms.
But somewhere along the line, my thinking began to shift. As I gained a deeper knowledge of how legal education and the legal profession evolved over time, including deficiencies that were contrary to our professional values, I began to ask myself the question, “As a lawyer and law professor, do I have an obligation to use what I am learning to help shape and direct the future of law and legal education?”
As a matter of ethics, the Preamble to the ABA Model Rules provide clear guidance on duties as “public citizens.” That said, there is an immense gap between that exalted language and our actions as a profession. For me, this has taken on a moral dimension that I’ve found impossible to diminish or ignore.
For example, at the same time that state courts are increasingly glutted with self-represented litigants, solo and small firm lawyers are struggling to earn a living. At the other end of the client spectrum, corporate legal departments continue to push back on the use of first- and second-year associates, which in turn puts downward pressure on entry-level hiring in law firms. Indeed, since the Great Recession, the number of entry-level jobs in private practice has gone down. Yet, regardless of job prospects, law student debt continues to go up.
At least for me, it’s been impossible to study and write about the current state of the legal profession without asking the question, “Doesn’t anyone have a plan?”
Then, over time, I gradually accepted the reality that as a lawyer and law professor with an intimate knowledge of these very serious industry-level problems, I needed to help lead the effort to solve them. Fortunately, other fellow travelers from other parts of the profession were reaching similar conclusions.
However, before getting too deeply into that story, let me first introduce the Institute for the Future of Law Practice, which is the vehicle we created to drive beneficial industry-level change
Will States Step Up in 2020? We Hope So
Get PDFWe offer no predictions about the next year in tax, but we will offer what we hope will happen — if not next year, then soon. To paraphrase Chief Justice John Roberts, we hope that when it comes to the taxation of multinational corporations in particular, states will act more like the “separate and independent sovereigns” that they are. often rely on volatile revenue sources. More stable tax bases, like the sales tax and the property tax bases, are riddled with design flaws, from the sales tax base not including services and intangibles to the property tax failing to provide substantial, and automatic, circuit breakers. The corporate tax continues to yield less as corporations earn mor
Considering Reconsidering Judicial Independence
Get PDFIn Reconsidering Judicial Independence, Professor Stephen Burbank revisits the nature of the relationship between judicial independence and judicial accountability—a relationship that he has elucidated over the course of an illustrious career. As Burbank emphasizes, the continuing success of this dichotomy depends on preserving a balance between its halves. But forces generations in the making have led to a new assault on the independence of the judiciary in the age of Trump, which has put the future of the independence–accountability balance in doubt. The age-old rule-of-law paradigm, which posits that independent judges put aside their personal biases and follow the law, has been debunked by data showing that judges are subject to ideological and other influences, undermining this traditional justification for judicial independence. To avert the erosion and collapse of judicial independence, we must defend it with recourse to a different paradigm—a legal-culture paradigm. The legal-culture paradigm appreciates that independent judges are acculturated to apply and uphold the law as best they can, but also recognizes that judges have discretion that is subject to extralegal influences—influences that better accountability can manage
Sticks, Stones, and So-Called Judges: Why the Era of Trump Necessitates Revisiting Presidential Influence on the Courts
Get PDFThis Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.
Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the ways in which Presidents have been able to significantly alter the makeup of the judiciary while in office. For considerations of brevity, this section will include a few illustrative examples in which Presidents have sought to alter the makeup of the courts, and each will be discussed in the context of the actions of President Trump.
Part III will explore instances of Presidents undermining the legitimacy of the judiciary by making comments about pending and past court cases, particularly using examples from more recent administrations. This Note concludes that, while President Trump’s behavior regarding the judiciary has been the subject of intense media scrutiny during his first two years in office, it is important to place his comments and actions in a historical context by looking at the examples set by past Presidents. Through this frame of analysis, this Note concludes that, although President Trump’s rhetorical attacks on the independence of the judiciary—particularly in the criminal context and in targeting individual judges—have been numerous and unprecedented, President Trump is also quietly shaping the makeup of the judiciary in a way that could become even more drastic if his administration embraces a modern Court-packing plan or continues to make judicial appointments at staggering rates
Beyond the Numbers: Substantive Gender Diversity in Boardrooms
Get PDFThe push for gender diversity on public companies’ boards has been gaining traction. Advocacy groups, institutional investors, regulators, and companies themselves have all recognized the need for more diverse boards. However, gender parity is still absent from most public companies’ boards, and a significant number of companies still have no women on their boards.
Current public and academic discourse has focused on the number of women serving on the board and their percentage compared to men as the litmus test for gender diversity. However, academic studies and the public push for more diversity have mostly failed to account for another important measure of board gender diversity—the actual role and clout that female directors have within the boardroom. This is what the Article terms as substantive gender diversity.
Substantive gender diversity matters. It is at the core of both the social cause and the business case for gender diversity on boards. This Article explores this substantive component of board gender diversity through empirical data relating to the roles that men and women play on corporate boards. The Article finds statistically significant differences between the roles of female and male directors. Building on these findings, the Article asserts that regulators, investors, and companies must focus not only on increasing the number of women on boards but also on ensuring that female directors enjoy similar parity once elected. The Article then proposes a shift towards a Substantive Gender Diversity Disclosure regime which would measure and report the substantive aspect of gender diversity in boardrooms
BC Ranch II v. Commissioner: A Flexible Approach to Perpetual Conservation Easements
Get PDFDepending on the approach used in enforcement, there is the potential to encourage or discourage charitable donations of conservation easements. In Part I, this Note explores the federal charitable income tax deduction for conservation easements and the legislative purpose in enacting the perpetuity requirements. Part II examines the Fifth Circuit’s decision in BC Ranch II and the flexible approach to perpetuity adopted by the court. Finally, Part III considers the implications of the BC Ranch II decision, specifically authority to monitor conservation easements, valuation gaming of easements in the context of perpetuity, and congressional intent in allowing the conservation easement deduction. Part IV addresses the main arguments against adopting a flexible approach to the easement deduction. Overall, this Note argues that a flexible interpretation of perpetuity by the IRS and the courts strikes the proper balance between respecting congressional intent and encouraging conservation efforts
Rising Authoritarianism(s) and the Globalization of Law: An Initial Exploration
Get PDFThis article explores the question what does the future hold for the globalization of law? In analyzing the future of legal globalization, I suggest that analyzing the recent rise of authoritarianism, both at the national as well as transnational plane, offers significant insights. I make three related observations regarding the rise of authoritarian politics. First, the rise of authoritarian and semi-authoritarian regimes and the blend of populism with authoritarianism at the national contexts seems to obstruct globalization of law. This is likely due to the fact that the power of authoritarian politics mostly comes from their populist appeal to the masses who stand to lose from globalization. For such appeal to continue, authoritarian politicians cultivate antiglobalization rhetoric and practices. The end result is a move away from globalized relations and institutional connectedness between different national legal systems. The similarity of the grammar out of which such authoritarianism is produced in various different national contexts, however, urges us to reflect on the globalized relations that structure such similarity. Second, the rise of authoritarian tendencies in domestic and supranational institutions, particularly in the name of political and economic emergency, may bring about a level of legal uniformity and thus globalization of law. I suggest, however, that what globalizes in such context is an essentially instrumentalized version of law, and a deeper reflection on what globalizes? is required as well as whether it could properly be called law. Third, as an extension of the second point, this article focuses on neoliberalism as the broad political economic background that informs the globalization of law in the post- 1980 period. I suggest that the instrumentalization of law, both domestically and internationally, is rendered possible by the fact that, under a neoliberal economic way of thinking and practice, economization spreads to all spheres of life and renders other institutional settings adjunct to itself. Such instrumentalization also includes the law and takes away from the power of this institutional field