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Conventions and Convictions: A Valuative Theory of Punishment
Get PDFThe one thing that most scholars of criminal law agree upon is that we are in desperate need of a comprehensive theory of punishment. The theory that comes closest to meeting this demand is the expressive account of punishment, yet it is often criticized for its inability to explain how the expression of communal values justifies punishment and why the condemnation of wrongdoing necessarily requires punishment. The Article answers these criticisms by arguing against the need to necessarily connect punishment to wrongdoing and by developing expressivism into a novel theory of punishment, grounded in the valuative function punishment serves.
Offering an original interpretation of Immanuel Kant’s Critique of Judgment, the Article argues that criminal law should be understood as a device in the service of the individual’s interest in affirming her personhood, an interest that is promoted by the creation and communication of values. The Article posits that criminal law serves this purpose by safeguarding the conditions that facilitate valuative communication. It does so by (1) cataloging the values shared in the community; (2) outlining the ways in which these values are commonly interpreted; and (3) penalty responding to forms of behavior that hinder successful valuation.
The Article concludes by examining the prohibition of abortion in light of the values such prohibition purports to protect, distinguishing between prohibitions that legitimately support the function of valuation and those prohibitions that serve communal values irrespective of the important function of valuation. The Article contends that, even if under certain circumstances an affront to protected values could justify the prohibition of abortion, the reasons for prohibition will commonly fail to justify the penal condemnation of those who perform or undergo it
Amici Curiae Brief of Law Professors et al., Pine Mountain Preserve, LLP v. Commissioner, filed in the U.S. Court of Appeals for the Eleventh Circuit
Get PDFAmici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018)
Rewriting Judicial Recusal Rules with Big Data
Get PDFBig data affects the personal and professional life of every judge. A judge’s travel time to work, creditworthiness, and chances of an IRS audit all depend on predictive algorithms interpreting big data. A client’s choice of counsel, the precise wording of a litigant’s motion, and the composition of the jury may be dictated by analytics. Touted as a means of bringing objectivity to judicial decision-making, judges have employed big data to determine sentences and to set the amount of restitution in class action cases. Unfortunately, the legal profession and big data proponents have ignored one perplexing problem begging for a big data solution—the arbitrary and inconsistent manner in which courts determine judicial recusal issues.
Every jurisdiction disqualifies a judge when the fully-informed, reasonable, lay observer concludes that the judge’s “impartiality might reasonably be questioned.” Created by the American Bar Association in 1972 to bring uniformity and consistency to the disqualification process, this “objective” test has been a dismal failure. The ABA’s goal, however, can be realized by infusing data analytics into the disqualification decision-making process.
Part I of this Article identifies the serious shortcomings of an appearance-based disqualification standard. Part II explains how analysis of big data can correct the theoretical and practical problems plaguing the “might reasonably be questioned” standard. Part III applies the big data derived model to one type of disqualification motion—motions seeking a judge’s removal from a case because of contributions made to the judge’s election campaign by litigants, lawyers, or others connected with the litigation
Debunking the Myths Behind the NEPA Review Process
Get PDFThe National Environmental Policy Act (NEPA) requires major federal actions that significantly affect the quality of the human environment to undergo an environmental review prior to federal authorization or funding. The decision to license or permit a project on federal lands is generally considered a major federal action subject to NEPA review. NEPA’s critics allege that the review process delays federal decision making, unduly impedes development, and results in excessive litigation. These claims, however, are not supported by empirical evidence. Using quantitative analyses we challenge four pervasive myths about NEPA compliance and litigation, and we argue that efforts to “streamline” NEPA are likely to have significant unintended consequences
The Technical Standardization Ecosystem and Institutional Decision Making: The Case of Intellectual Property Rights Policies
Get PDFIn this paper, we analyze decision making on Intellectual Property Rights (IPR) policies in the standardization ecosystem. While a large literature has studied IPR policies of Standard Developing Organizations (SDOs), we contribute a more rigorous analysis of how these IPR policies are shaped by the interdependencies between SDOs and between SDOs and a variety of stakeholders. While SDO stakeholders often have opposing policy preferences, they are tied together by non-generic complementarities and a joint interest in the overall performance of the standardization system, which are constitutive characteristics of an ecosystem. The standardization ecosystem is characterized by widely shared institutional norms, which – in the field of IPR – result in the preponderance of what we call a “Baseline Policy”. SDOs’ positions in the ecosystem contributes to explain where in the ecosystem institutional innovations going beyond the Baseline Policy are more likely to arise. We analyze different mechanisms of transmission of such novel practices, such as emulation and precedent
Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change
Get PDFThis Article suggests a novel concept in climate change law and attorney ethics law by proposing that many states’ attorney ethics laws could be interpreted to require, or at least permit, attorneys to disclose client activity relating to greenhouse gas emissions. Every state has some form of ABA Model Rule 1.6(b), either requiring or allowing attorneys to disclose client activities that result in death or substantial bodily harm. This Article asserts that precedent surrounding this disclosure rule indicates that the rule could be applicable to harms caused by greenhouse gas emissions. Attorney disclosures, in turn, could impact a wide swath of greenhouse gas-emitting activities, making it more transparent and, in certain cases, requiring attorneys to counsel cessation of such activities or withdraw from representation. Because climate advocacy organizations are seeking to use all legal tools at their disposal to slow or stop greenhouse gas emissions, attorney ethics law could present an additional strategic tool to try and control greenhouse gas emissions activities. Thus, attorneys from the private sector and in government should be aware of the potential ethical issues they may face when handling greenhouse gas-related legal work
Networks of Empathy
Get PDFDigital abuse is on the rise. People increasingly use technology to perpetrate and exacerbate abusive conduct like stalking and harassment, manipulating digital tools to control and harm their victims. By some accounts, 95% of domestic-abuse cases involve technology, while a sizeable chunk of the U.S. population now admits to having suffered or perpetrated serious abuse online. To make matters worse, people often trivialize digital abuse or underestimate its prevalence. Even among those who do appreciate its severity, there remains ample disagreement about how to address it.
Although law can be a powerful tool to regulate digital abuse, legal responses are by no means the only option. This Essay explores how both computer code and social norms can prevent and mitigate forms of digital abuse that aren’t easily addressed through law. These regulatory responses should be grounded in empathy for victims of digital abuse. Empathy demands imaginatively putting oneself in a victim’s place and attempting to feel as they feel—a trying task made easier by heeding victims’ stories. We can neither understand nor address digital abuse unless we view technology in a deeper social context and grapple with how and why digital abuse is harmful. This Essay urges key figures to exhibit greater empathy in developing code and norms to help victims, proposing ways that technologists, police officers, educators, employers, and victims can use these extralegal means to combat an increasingly pervasive form of abuse
Chapter 7: Wild Places and Irreplaceable Resources: Protecting Wilderness and National Monuments
Get PDFThis chapter is really two chapters in one in that it discusses wilderness, both as an idea that has had an evolving meaning, and as a legal construct. This chapter also discusses national monuments on our public lands, another legal construct that has been used to protect a wide range of resources, including wilderness character. To be sure, these areas overlap, but that overlap is far from complete, and the objectives underpinning these two designations, while complimentary, are not identical
Research And Repair: Expanding Exceptions To Patent Infringement In Response to a Pandemic
Get PDFThe doctrinal areas on which this essay focuses are two longstanding but narrow exemptions from patent infringement: one that permits scientific research, and one that permits the owner of a patented device to repair it. Though distinct at first glance, both of these doctrines act to permit activity that would otherwise be considered patent infringement. They are exceptions to the exclusivity that the law grants to patent holders – particularly the right to “make” a patented article and, to a lesser degree, to “use” it, and for this reason they are particularly salient when patents may impact critical lifesaving technologies. This essay recommends broadening the scope of the research exemption to cover a larger range of research activities conducted prior to the release of a commercial product; and recognizing the right of an owner of a patented product to make, or have made, replacement parts for that product, even if those parts may be covered by the claims of a patent or cross the line of “reconstruction” under current law. The implementation of these adjustments, conceived in light of the current coronavirus pandemic, could facilitate increased research, development and use of patented technologies and better prepare the U.S. to deal with the next great public health crisis
Amici Curiae Brief, Pine Mountain Preserve, LLP V. Commissioner, Filed in the U.S. Court of Appeals for the Eleventh Circuit
Get PDFAmici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018)