8145 research outputs found
Sort by
Is RealT Reality? Investigating the Use of Blockchain Technology and Tokenization in Real Estate Transactions
Get PDFThe Partial Success of Judge Frankel’s Sentencing Commission, Fifty Years On
Get PDFJudge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story of how Judge Frankel’s proposal evolved, where and how it was adopted, and how well it has stood the test of time. The essay concludes that Frankel’s critique of unregulated judicial and parole discretion was, and is, correct—such lawless, haphazard deprivation of offenders’ liberty and life chances is unacceptable in any legal system claiming to be governed by the rule of law. The essay further argues that well-developed guidelines, based on Frankel’s elaborated proposal and as implemented in several states, provide the best and indeed the only proven way to meaningfully address the problems of sentencing and parole disparity that Frankel so eloquently identified. But he would want and expect guideline systems to continue to evolve, thoughtfully and steadily coming closer to the shared goals of fair, balanced, and cost-effective punishment. The essay therefore proposes several further reforms, any of which would improve even the best state guideline systems
Mitigating Citation Errors in the Interlibrary Loan System
Get PDFJournal articles from most academic disciplines have long shown high rates of citation errors. American law reviews, with their careful cite-checking, are a rare exception to the overall rule. Incorrect citations are especially costly and problematic for interlibrary loan librarians. This article offers practical suggestions to address the problem
The Virtuous Executive
Get PDFAs currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics. This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. Certain character traits—referred to in this Article as the executive virtues—play an essential role in the proper functioning of Article II and the broader separation of powers. These virtues can and should be encouraged by courts, Congress, and other constitutional actors. In this Article, Rozenshtein describes the executive virtues, shows how they capture the original understanding of Article II, and argues for their contemporary importance in light of the presidency’s ever-increasing power and discretion. The Article offers a preliminary list of the main executive virtues—loyalty, honesty, responsibility, justice, inclusiveness, and judgment—and describes how the constitutional requirement of executive virtue can be operationalized. For example, the Article shows how questions of executive virtue were central in Trump v. Hawaii (the travel-ban case), offer a revisionist defense of the impeachment of Bill Clinton, and argue in favor of more control over presidential primaries by party elites. The Article conclude with the observation that, as recent history demonstrates, the lack of presidential virtue can constitute a full-blown constitutional crisis
Sidestepping the Escherian Stairwell: Explicit Establishment as a Method for Circumventing Qualified Immunity\u27s Constitutional Stagnation
Get PDFIn recent years, the doctrine of qualified immunity (QI) has gained increased prominence in the public consciousness. Prior to the murder of George Floyd and the resulting nationwide racial justice protests and uprisings, this Supreme Court–made doctrine—and the ways it shields law enforcement officers from legal accountability—was a relatively esoteric legal topic. Yet by the summer of 2020, Americans were marching in the streets with signs calling for QI’s demise, and polling found QI to be disfavored by a margin of two-to-one. This same polling also showed a sharp decline in public confidence that police would use force appropriately, treat minorities equally, or hold their fellow officers accountable. 42 U.S.C. § 1983 is supposed to provide an avenue to hold officers civilly liable for constitutional violations, but QI severely undercuts § 1983’s accountability function by shielding officers and other public officials from litigation altogether. So long as QI remains, however, giving courts the most effective tools possible to counter its constitutional harms presents the best chance of providing some semblance of the accountability § 1983 is supposed to provide. In Saucier v. Katz, the Supreme Court adopted a two-step, sequential test for courts to gauge QI’s applicability to a given set of facts: first, determine if the alleged facts show a constitutional violation. If yes, then second, determine whether prior caselaw had clearly established the constitutional right under the same or similar circumstances. Only if the answer to both questions is “yes” would a plaintiff overcome QI and be allowed to litigate their case. The mandatory sequencing of this procedure was meant to ensure the continued elaboration of constitutional rights by requiring courts to address the constitutional questions before them regardless of whether QI was ultimately granted on the second “clearly established law” prong of the analysis. In Pearson v. Callahan, however, the Court retreated from Saucier’s intended measures against constitutional stagnation. Pearson allowed judges to analyze QI claims based on whichever of the two prongs they chose, with an eye towards judicial efficiency. Even though both Saucier and Pearson admonished courts not to “skip ahead” to the clearly established law prong of the analysis, federal courts quickly developed a tendency to do just that. This trend has resulted in constitutional issues repeatedly going unanswered, leading to what Fifth Circuit Judge Don Willett has described as “Section 1983 meets Catch-22,” whereby “[i]mportant constitutional questions go unanswered precisely because no one’s answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiffs lose.” In a handful of post-Pearson cases, however, circuit courts have granted defendants QI due to a lack of previous clearly established law while simultaneously taking the extra step of explicitly establishing such conduct to be a constitutional violation going forward. This Note reviews the utility of this procedure—which it refers to as “explicit establishment”—as a means of circumventing the Escherian Stairwell. After surveying the history of QI and chronicling the dysfunctionality of the post-Pearson QI paradigm, this Note analyzes the few instances where explicit establishment has been employed and advocates for its wider use by federal circuit courts
Client-Centered Legal Education and Licensing
Get PDFClients are central to law practice, yet they play a limited role in both legal education and licensing. This article challenges legal educators and bar examiners to become more client-centered. The article draws upon empirical data demonstrating the importance of client-related, hands-on skills in law practice, and then outlines innovative approaches to licensing that would assess those skills alongside other foundational knowledge and skills. If adopted, these innovative licensing paths would treat aspiring lawyers fairly, encourage law schools to focus more heavily on client-related skills, and protect the public more effectively than written bar exams
Data Breach Class Actions: How Article III Standing Analysis Should Evolve After TransUnion, LLC v. Ramirez
Get PDFData breaches have become a common occurrence for many people in America. Companies retain consumers’ personal information (SSN, DOB, bank account, credit card, biometrics, etc.) to better serve the consumers as well as to improve their company’s bottom line. Hackers get into those databases to fraudulently use existing consumer accounts as well as steal those consumer identities, with major repercussions. When hackers go unidentified, class action litigation is taking place between consumers and companies based on theories around negligence, breach of contract, and more. One of the most hotly contested issues is whether all the plaintiffs actually have Article III standing to bring suit in federal courts. This debate arises when consumer data exposed in the breach has not yet resulted in an identity theft or fraudulent charges on accounts. Those plaintiffs come to court based on the theory of risk of future harms. This theory dovetails into the broader lack of clarity in caselaw around what actually qualifies for Article III standing as an “imminent injury-in-fact.” Nine circuits have weighed in on this data breach standing question so far. Two circuits issued new opinions in 2021, in McMorris v. Carlos Lopez & Associates, LLC, 995 F.3d 295 (2d Cir. 2021) and Tsao v. Captiva MVP Restaurant Partners, LLC, 986 F.3d 1332 (11th Cir. 2021). Article III standing analysis gets more complicated because, in TransUnion, LLC v. Ramirez, 141 S. Ct. 2190 (2021), the Court addressed Article III standing “imminent injury-in-fact” requirements for situations slightly different from data breaches, but with analytic similarities that are likely applicable. This Note summarizes where data breach litigation currently sits in the federal circuit courts and explains the holding and impact of the Ramirez decision. Additionally, this Note calls on the GAO to renew its efforts to research the impact of identity theft on U.S. citizens. Finally, this Note proposes a rule that should be used as the solution to remedy the circuit differences in data breach standing cases, specifically with an eye towards being in line with the new holding in Ramirez and bringing much needed clarity to consumers