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Public Undersight
Get PDFThe laws governing transparency and accountability in government are deeply flawed and plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set of grassroots efforts that seek to reconstruct government information extralegally, rather than work through existing legal structures or remedy breakdowns in the formal transparency law regime. An array of bottom-up movements to circumvent the formal transparency law and challenge the government’s monopoly on information have sprung up around the country in recent years across a wide variety of substantive areas. Activists now rely on public sources of information and extralegal monitoring to track where ICE conducts immigration raids, observe police activity in communities of color, monitor air pollution near industrial sites, and collect data on bail decisions. I refer to these efforts as forms of “public undersight.” By ignoring these increasingly influential grassroots movements, transparency law scholars have overlooked important developments in the public’s ability to hold government actors to account. Fleshing out these extralegal forms of transparency enriches our understanding of government oversight and allows a more nuanced and complex view of the information ecosystem that sustains a liberal democracy to come to light. This Article aims to widen the aperture of the transparency law literature and bring the rise and effects of these extralegal movements into view. In doing so, it makes three contributions. First, it offers a descriptive account of the public undersight regime, defining the concept and chronicling the various efforts and movements that fall within its scope. Second, it offers a normative account. It highlights the ways that these extralegal efforts can remedy flaws in the transparency law regime and democratize public access to government. It also explores potential drawbacks and risks. Finally, this Article addresses gaps in the transparency law scholarship. It draws on recent works exploring extralegal activism and social movements to examine how these grassroots efforts can be used to expand our conception of public oversight and reimagine the task of government transparency and accountability. And it links the transparency law scholarship to the field of surveillance studies, using insights derived from the surveillance studies literature to illuminate the power of these grassroots transparency efforts to serve as a means of resistance—allowing communities long subjected to intrusive forms of government surveillance to co-opt the tools and techniques of the government and stare back
Constraining Criminal Laws
Get PDFMost criminal law is statutory. Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes. Those theories say that, when interpreting statutes, courts should always be faithful agents aiming to implement the will of the legislature, and that task does not change depending on whether the statute is criminal. This Article shows that treating the interpretation of criminal statutes the same way as other statutes is a major departure from the past. Historically, courts did not simply try to implement the will of the legislature in interpreting criminal statutes; instead, they played a more active role, adopting a package of interpretive rules that constrained the criminal law. The Article argues that courts should once again adopt this historical approach to interpreting criminal statutes in order to reestablish the judiciary as an important check on overly broad criminal laws, promote democratic accountability, and foster important principles of notice and predictability
Chilling Effects and Unequal Subjects: A Response to Jonathon Penney\u27s Understanding Chilling Effects
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Investing in Private Evidence: The Effect of Adversarial Discovery
No full textMuch of the conventional wisdom of evidence law rests on the premise that the amount of evidence available in any given case is exogenously determined. With the advent of evidence technology (e.g. dashcams, black-box technology, digital data storage, surveillance cameras), the availability of evidence is substantially controlled by individuals. In this article, we show that evidence rules play an important role in determining individuals’ decisions to invest in private evidence. We compare the evidence rules adopted in the USA and Europe and analyze their relative impact on the voluntary adoption of evidence technology. We find that by making private evidence not discoverable, more rather than less evidence would be made available to courts
Strengthening Boards Through Diversity: A Two-Sided Market That Can Be Effectively Serviced By Intermediaries
Get PDFBuilding a Radical Shift in Policy: Modifying the Relationship Between Cities and Neighbors Experiencing Unsheltered Homelessness
Get PDFMaking Your Robotic Surgery Systems General Purpose: A Possible Preventive Measure for Induced and Contributory Infringement Liability Arising in Medical Procedures
Get PDFJanuary 6, Ambiguously Inciting Speech, and the Overt-Acts Rules
Get PDFA prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol.
This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This Article is an attempt to make that line clearer
Rethinking the Crime of Rioting
Get PDFThe fear of riots has long loomed large in the public imagination. This fear is at least partly justified. Riots can present unique challenges, both in the harm they can cause and in the government’s ability to control them. However, from the American colonies to the Civil Rights era, there is also a history of members of largely nonviolent social movements being tarred as “rioters.” This use of the label of “rioting” to undermine dissent is not just a political problem but also a legal one, and it has once again reemerged. Although the Black Lives Matter protests of 2020 were overwhelmingly nonviolent, in the year that followed, state lawmakers pointed to violence that did occur to introduce legislation in over half of U.S. states that would strengthen or expand rioting offenses. This wave of new anti-rioting legislation has been criticized as an attempt, not to address violence, but rather to target and intimidate peaceful protesters. Despite the prominence of rioting in U.S. history, the criminal offenses of rioting and incitement to riot have been strikingly understudied. To help fill this gap and better situate this recent surge of legislation, this Article provides the first systematic analysis and critique of these crimes in the United States. It traces how these offenses are rooted in an English common law heritage where the crime of rioting was a blunt tool that the government frequently used to suppress political and religious dissent. It then shows that although today’s U.S. anti-rioting legal measures vary considerably by jurisdiction, in an age of mass protest movements, they can often undermine the freedom of peaceful assembly. The core offense of rioting—violence or property destruction by individuals as part of a group—is already unlawful under other parts of the criminal law. However, many rioting offenses expand criminal liability to those who engage in no violence themselves but are simply part of a crowd that is “rioting” or create liability for conduct that only threatens property destruction or violence. Meanwhile, incitement to riot provisions can frequently capture merely provocative speech. These crimes against rioting provide law enforcement wide discretion—a discretion which has a history of politicized and racialized abuse. Government has a clear interest in stopping riots. However, this Article argues that, given a range of other tools available to achieve this goal and the history of these crimes being used against nonviolent protesters, jurisdictions are better off eliminating the offenses of rioting and incitement to riot altogether. Where that is politically infeasible, this Article lays out a framework to better target these crimes to minimize the risk of their misuse