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No Knock? No Case: Prosecutorial Deterrence as a Countermeasure to No-Knock Warrants
Full text linkThe high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy that permits the cycle of reaction and inaction to persist. This Article asserts that a viable solution to break this cycle rests within the purview of prosecutors, who may deter law enforcement from requesting and executing no-knock warrants through the implementation of office policies that discourage their use. Specifically, under this proposed prosecutorial deterrence model, prosecutors may deter law enforcement’s use of no-knock warrants in criminal investigations by administratively suppressing evidence obtained via no-knock warrants or by refusing to pursue cases where no-knock warrants were obtained and executed. This approach necessitates a concerted effort in fostering open communication with law enforcement agencies and fostering transparency within the community. When done correctly, the prosecutorial deterrence model embraces the notion that duly elected officials should be accessible, responsive, and accountable to the people
Rejecting the Unitary Executive
No full textCritics have dismissed originalism as an empty methodology. They claim it is incapable of resolving our most important constitutional disputes, including the debate over the unitary executive. While unitary scholars assert that Article II grants the President an indefeasible power to remove all subordinates at will, their purportedly originalist interpretation conflicts with significant historical evidence. The Supreme Court’s apparent move toward an indefeasible removal power has proceeded as though this underlying historical indeterminacy is either irrelevant or does not exist. This Article offers a new way to bridge the disconnect between historical disputes over the unitary executive and public meaning originalism’s claims to determinacy. While leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus about the Constitution’s meaning, unitary scholars have attempted to show consensus by using a selective legal framework. Their selective approach fails to comply with key tenets of sound empirical analysis. In response, this Article offers an empirical framework that measures unitary claims against the entire historical record, including evidence that would render these claims false. Under an empirical framework, for example, a theory asserting an absolute claim that all swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowers the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power. My empirical framework makes clear what originalism’s underdetermined methodology has hidden from plain sight. The Founding generation rejected an absolute presidential removal power. The question remaining for the Supreme Court is not a choice between competing parts of the historical record. It is instead a choice between a modern, unitary construct of executive power and the original understanding of Article II
State Trust Land Revenue Diversification Through Conservation
Full text linkWestern states oversee tens of millions of acres of state trust lands granted to them by the federal government more than a century ago to fund public education and other public services. Traditionally, these lands have been leased for energy development, timber harvesting, livestock grazing, and other consumptive uses to generate income for the trust’s beneficiaries. However, evolving markets and societal values present both novel opportunities and challenges for state trust land managers. This Article finds that states are not only permitted but obligated to consider revenue generation through conservation or other nonconsumptive uses to meet their enduring trust responsibilities. This finding is not a reinterpretation of state trust land mandates to make preservation and biodiversity a top-down priority, but instead, an opportunity to leverage bottom-up interest in conservation use of state lands to generate additional and more diversified income. The Article then describes the obstacles that often hinder conservation use of state trust lands and examines practical considerations for integrating conservation uses into existing trust land management frameworks, offering insights into the future of state trust land management
Policing’s Free-Speech Problem
Full text linkThe central claim of this Article is that a significant share of typical policing activity is wildly and egregiously unconstitutional. More precisely, police regularly, predictably, and systematically violate the hardest, most settled core of free-speech law under the First Amendment. We have grown to tolerate these violations—we have not even noticed them!—because they are difficult to litigate. But they are inescapable. Having seen them, we cannot abide these violations without entirely overturning the modern understanding of free-speech rights under the First Amendment.
It is well-settled that, under the First Amendment, the government generally may not discriminate against (or in favor of) civilian expression based on the viewpoint it expresses. This constitutional bulwark is strongest with respect to political viewpoints expressed in traditional public forums, like public parks and streets. Legal challenges alleging unconstitutional viewpoint discrimination are most successful when they target formal or de jure discrimination—protocols rendered in writing, such as statutes, ordinances, and official policies. Yet the courts have long recognized that the principle of viewpoint neutrality precludes de facto favoritism as well, such as favoritism grounded in the informal choices of legal officials. This remains true even though unwritten exercises of official discretion tend to obscure discriminatory intent and thus preclude most legal challenges.
Police are uniquely positioned within this First Amendment landscape. No other officials possess the same combination of means, motive, and opportunity to engage in widespread, de facto viewpoint discrimination. Most notably, police carry a distinctive blend of selfinterest, power, and presence in traditional public forums to suppress core political speech critical of (or disrespectful toward) policing. Evidence that police capitalize on these factors has been accumulating for years, though it has perhaps accelerated more recently, since the murder of George Floyd. Police disproportionately target Black Lives Matter and other police-reform protesters for violence and arrests. They engage in work slowdowns meant to influence political movements pushing for police reform. And their vengeful use of discretionary authority against civilians perceived as disrespectful of police authority is so common that we have a name for it: “contempt of cop.”
There are many arguments for police reform grounded in generalized concerns about the high costs, low efficacy, shocking violence, and racial biases associated with policing. This Article develops a new, purely constitutional argument that bears directly on police reform: Contemporary policing is not only a monument to a controversial model of social control; it is also a mausoleum for the principles behind modern free-speech jurisprudence
Symbiotic International Law: Combatting Uyghur Forced Labor
Full text linkSince 2017, the Chinese government has launched a campaign of repression against the Muslim Turkic minorities of Xinjiang, a region located in China’s Northwest. While most scholars have focused on the mass internment of Uyghurs and other minorities, this Article highlights an under-discussed aspect of China’s campaign: the construction of a sophisticated forced labor system. Minority forced labor supplies key sectors of the global economy—from the automotive to the energy sectors—and allows Chinese companies to outcompete foreign firms. The unprecedented scope and sophistication of what I term the “modern Xinjiang forced labor system” imperils the very future of the international order.
Challenging conventional thinking, this Article argues that international law, far from being moribund, offers solutions to the current crisis. Specifically, this Article lays out a dual-track strategy, according to which liberal democratic states that seek to contest the Xinjiang forced labor system should combine the use of procedures at a formal institution of international law—the International Labor Organization—with the deployment of domestic legal tools, namely: (1) forced labor importation bans and (2) mandatory human rights due diligence legislation.
Ultimately, this Article introduces the concept of, and advocates for, a symbiotic approach towards international law. International institutions remain important, mostly due to their legitimacy in the eyes of many states; yet international law does not belong solely to these formal institutions. Instead, states have long upheld and advanced international law through the employment of domestic legal measures. The Xinjiang forced labor crisis thus offers an architectural lesson for international law. In responding to systemic threats, the international community will only be able to ensure the continued health of international law by adopting a mixed approach, which combines respect for and advocacy at international institutions with hard-hitting domestic tools of enforcement.
“When they force me to accept the massacre as love Do you know that I am with you.” Perhat Tursun, The Eleg
Third-Party Funding of Patent Litigation: Problems and Solutions
Full text linkThis Article documents the rise of third-party funding in patent litigation. We track funding sources for patent lawsuits in the United States from 2002 to 2021, which show an increase in cases and percentage funded by third parties. While we cannot say third-party funding increased patent litigation, we can observe the correlation. The use of the champerty doctrine by patent trolls distorts the marketplace and causes frivolous litigation.
The secondary patent market created a robust litigation market in which non-practicing entities (NPEs) can buy from innovators and sue defendants. Capital investments bet on litigation, hoping for a return without interest in underlying innovation. Litigation growth drains welfare and creates taxes on innovation: Companies spend resources to counteract trolls. Patent policy is imperfect: It grants monopolies to innovators and promotes rent-seeking and lobbying.
Other than abandoning patent policy, the best solution is for courts to request disclosure of third-party funding arrangements in litigation. Allowing voluntary disclosure increases transparency in the arrangements behind patent litigation. Juries factor these into their decisions about protecting the rights of innovators. Disclosure has improved governance and reduced asymmetries in capital markets and could similarly affect litigation: Unnecessary litigation decreases, and third-party funding resumes supporting under-resourced innovators
Relative Stare Decisis
No full textStare decisis stands at a crossroads. The Supreme Court has recently overturned landmark precedents on abortion rights, affirmative action, and administrative deference, while signaling its willingness to reconsider other long-settled doctrines. Amid this tumult, one principle appears to command broad consensus: Stare decisis carries heightened force in statutory cases, where Congress can override the Court’s decisions through ordinary legislation, and less force in constitutional cases, where override can only be accomplished through the onerous Article V amendment process. Yet this doctrine of “relative stare decisis” rests on remarkably fragile foundations. The principal justifications offered by its adherents are underdeveloped or unpersuasive, and several compelling critiques have gone unanswered. Perhaps most troublingly, courts routinely and illogically invoke this broad generalization about two heterogeneous categories of decisions as a reason to follow precedent in particular cases. This Article reconstructs relative stare decisis from the ground up, developing two distinct justifications for treating statutory and constitutional precedents differently. The error-costs rationale provides a more rigorous foundation for familiar intuitions about the significance of legislative override. The epistemic rationale explains why statutory precedents that survive legislative override reflect greater accumulated wisdom than constitutional precedents. Because the strength of these justifications varies significantly within statutory and constitutional domains, as well as across the statutory-constitutional divide, it is necessary to calibrate the strength of stare decisis on a case-by-case basis. To that end, the Article develops a practical toolkit for balancing stability and reliance interests against error costs, while also accounting for the epistemic value of statutory precedents that have stood the test of time
Water Reallocation in the West: Government and Markets
Full text linkWater is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information and market abuse.
Water markets often spark controversy, particularly with the recent involvement of large financial actors in water rights transactions. Australia’s experience shows that an active water market, while not without challenges, can alleviate the costs of drought. This example also highlights the necessity of regulating markets to ensure fair competition as they grow more active and complex. While speculation poses a risk, the solution lies in regulating market practices rather than abandoning water markets. We cannot throw out the baby—water markets— with the bathwater—the unsavory market practices some may engage in
Protecting the Presumption of Innocence: TikTok Detectives, Misinformation and Private Content Moderation
Full text linkThe presumption of innocence is a fundamental component of the American legal system, but modern media platforms undermine its effectiveness. Platforms like TikTok have become popular sites for true crime content, allowing online detectives to spin their own narratives about high-profile crimes, often with little regard for the truth. This trend undermines the integrity of the legal system and causes irreversible harm to those being baselessly accused on social media. While TikTok and other social media platforms employ guidelines to moderate users’ content, they consistently fall short in preventing the spread of unverified true crime content. This Note explores TikTok’s role in shaping perceptions of guilt and innocence, advocating for the platform to adopt stronger, more effective content moderation policies
Third-Party Litigation Funding
Full text linkAs the legal system confronts rising litigation costs, technological disruption, and global investment in legal claims, the discussion around TPLF is both urgent and overdue. This symposium issue provides ways to illuminate the path forward— through scholarly engagement, critical analysis, and policy innovation