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Showing papers in "Texas Law Review in 2015"


Journal Article
TL;DR: For example, this article found that emotional reactions to litigants influence the decisions of mock jurors in hypothetical civil and criminal cases, and that these effects extend to legal contexts, revealing that emotions also influence judges' decisions.
Abstract: Emotion is a fundamental aspect of human existence. In normal, healthy people, feelings about options exert a powerful influence on choice. Intuition and anecdote suggest that people react more positively toward others whom they like or for whom they feel sympathy than toward others whom they dislike or for whom they feel disgust. Empirical research in the field of psychology confirms that impression. Experiments also show that this effect extends to legal contexts, revealing that emotional reactions to litigants influence the decisions of mock jurors in hypothetical civil and criminal cases. This Article explores the question whether feelings about litigants also influence judges' decisions. Unlike jurors, judges are expected to put their emotional reactions to litigants aside. Can they do it? The first reported experiments on the topic using actual judges as subjects suggest that they cannot.Passion and prejudice govern the world; only under the name of reason.1-Reverend John WesleyI. IntroductionEighty years ago the great American trial lawyer Clarence Darrow observed that: "Jurymen seldom convict a person they like, or acquit one that they dislike. The main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant."2 Similarly, United States Circuit Judge Jerome Frank asserted that "Mr. Prejudice and Miss Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury."3 We suspect that these observations are exaggerations but that they also hold some truth.4 Sympathy and empathy in the jury box can be defended as softening the sometimes sharp edges of our legal system.5 Judges, however, are supposed to make reasoned decisions based on the facts and the law rather than on the basis of enmity or empathy for litigants.6 Judicial oaths require judges to put their feelings towards litigants aside.7 But judges are human beings too. Are they any less swayed by their prejudices and sympathies than juries?8Whether judges can make dispassionate decisions or not, politicians and the public expect and even demand that they do so. When United States Supreme Court Justice David Souter announced his retirement, for example, President Barack Obama stated that he was searching for a replacement who would embrace emotions in at least some settings. As the President put it: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving a[t] just decisions . . . ."9 Innocuous as it might seem to suggest that a Supreme Court Justice should try to understand the perspectives of those who appear before her, the statement ignited a firestorm of criticism.10 Some suggested that the President's emphasis on empathy was tantamount to abandoning the rule of law.11 Equating empathy with partiality, Senator Charles Grassley asserted that "the most critical qualification of a Supreme Court Justice [is] the capacity to set aside one's own feelings so that he or she can blindly and dispassionately administer equal justice for all."12Most judges embrace Senator Grassley's views and routinely reject the idea that emotions should influence their decisions. Asked about the proper role of a judge during her Senate confirmation hearing, United States Supreme Court Justice Sonia Sotomayor responded: "[J]udges can't rely on what's in their heart. . . . [I]t's not the heart that compels conclusions in cases. It's the law."13 Subsequently, President Obama's second nominee to the Supreme Court, Elena Kagan, articulated the same view during her own Senate confirmation hearings. When asked whether it was ever appropriate for a judge to rely on his or her feelings, even in extremely close cases, she replied, "it's law all the way down."14 Other judges commonly echo these claims. A recent nominee to the United States District Court for the Northern District of Georgia, Judge Michael Boggs, testified before the Senate Judiciary Committee: "The comforting part about being a judge is that that the law should prevail in each and every case. …

64 citations


Journal Article
TL;DR: Lach et al. as discussed by the authors argued that water managers are falling behind in the race to resolve mounting troubles and suggested a number of techno-scientific, legal, and behavioral modifications that could be adopted in managing water resources.
Abstract: Maintaining the Status Quo: How Institutional Norms and Practices Create Conservative Water Organizations Denise Lach, * Helen Ingram, ** and Steve Rayner *** I. Introduction Water managers are falling behind in the race to resolve mounting troubles. Adverse environmental and social consequences of past management practices are evidenced by endangered species’ lost habitats, the billions of people without access to clean water or sanitation services, 1 and fierce competition among advocates for the use of diminishing water resources. Observers of these and other water problems have been predicting and often advocating fundamental changes in the way we manage water resources. 2 Such extreme stress on water organizations would seem to be the ap- propriate context for innovation, and water analysts have suggested a number of techno-scientific, legal, and behavioral modifications that could be adopted in managing water resources. Advances in water metering and pricing could enable water utilities to reduce water demands. Water transfers could ensure that scarce water is used for its highest value. Privatization of water utilities and the substitution of markets for public agency control could introduce economic discipline into water use. Such advances could postpone expensive and environmentally damaging infrastructure construction or even make it unnecessary. * Assistant Professor of Sociology, Oregon State University. ** Professor of Planning, Policy, and Design and Political Science, and Drew, Chace and Erin Warmington Chair in the Social Ecology of Peace and International Cooperation, University of California, Irvine. ***Professorial Fellow of Keble College, Oxford University, and Director, James Martin Institute for Science and Civilization, Said Business School, Oxford University. 1. I N S EARCH OF S USTAINABLE W ATER M ANAGEMENT : I NTERNATIONAL L ESSONS FOR THE A MERICAN W EST AND B EYOND (D. Kenney ed., forthcoming 2005); W ORLD W ATER A SSESSMENT P ROGRAMME , U NITED N ATIONS , W ATER FOR P EOPLE , W ATER FOR L IFE : A J OINT R EPORT BY THE T WENTY - THREE A GENCIES C ONCERNED WITH F RESHWATER 100–23 (2003). 2. See T ERRY L. A NDERSON & D ONALD R. L EAL , F REE M ARKET E NVIRONMENTALISM 103–05 (2001) (advocating for more clearly defined and enforced property rights in water); C OMM . ON P RIVATIZATION OF W ATER S ERVS . IN THE U.S., N AT ’ L R ESEARCH C OUNCIL , P RIVATIZATION OF W ATER S ERVICES IN THE U NITED S TATES : A N A SSESSMENT OF I SSUES AND E XPERIENCE 111 (2002) (concluding that the presence of private alternatives has motivated improved performance of public utilities and will likely continue to do so); Charles W. Howe et al., Innovative Approaches to Water Allocation: The Potential for Water Markets, 22 W ATER R ESOURCES R ES . 439, 439 (1986) (arguing that water markets often possess more desirable characteristics for resource allocation than available alternatives).

62 citations


Journal Article
TL;DR: In this paper, the authors propose a more conceptual, indeed critical, perspective on law- science interactions, which they call a "cascade of deference," from a relatively high point, where it makes good practical sense for the law to cede epistemic primacy to claims originating in science, to a point of little or no deference, where the law's core concerns for representation, accountability, and justice, as defined by legal norms, should take precedence over science's claims to higher authority.
Abstract: As the articles in this symposium issue attest, the relationship between law and science has begun to attract attention as an autonomous field of study, generating its own bodies of expertise and specialized scholarship. It is less obvious how the perspectives arising from within the community of legal practitioners and thinkers relate to a largely separate, but parallel, body of research and understanding from Science and Technology Studies (STS), a cross-disciplinary field that has for several decades been producing its own analyses of the relations between science, technology, and other authoritative institutions in society-including, of course, the law.1 Perhaps predictably, intersections between STS and legal studies have occurred most frequently around questions of evidence, since both fields share an interest in the nature and credibility of facts.2 Another area of topical convergence is intellectual property law, where authors may have dual training in law and STS.3 The shared interests of the two fields, however, bear on more fundamental questions of legal and political theory: questions about the nature of legitimacy and lawfulness in the modern world, where the actions of those in power must be held accountable to epistemic as well as normative standards-in short, to facts as well as to values. How to orchestrate that deeper engagement between STS and legal scholarship is one aim of this Article.4The road there can be charted in different ways. This symposium offers a pragmatic map. One can begin with cross-cutting topics at the intersections of science and law, especially criminal justice, bioethics, and the environment. In each of these areas, one approach is to pose questions aimed at improving the quality of scientific inputs to the legal process. Specifically, what evaluative standards should apply in conflicts over substance? Who should decide when experts disagree? And how should the results of knowledge processes be implemented? Under each of these headings, legal processes could benefit from a fuller grasp of relevant insights from STS, just as STS scholarship would gain depth and relevance by addressing more directly the kinds of issues and questions that seem most challenging from the standpoint of the law. In that sense, the pragmatic map may be as useful a starting point for future STS research as for legal studies.This Article, however, departs from the topic-theme structure of the symposium to offer a more conceptual, indeed critical, perspective on law- science interactions. Here the concerns are not so much with making good decisions and hence with developing practical guidance on how the law should use or rely on scientific evidence and expert advice. Rather, the aim is to put society's needs in the driver's seat and explore how the two institutions could operate more effectively as partners in the central projects of governance in modern democracies: how to exercise power with reason, how to make good decisions in the face of epistemic as well as normative uncertainty, and how to strike an accountable balance between the sometimes conflicting pressures of knowledge and norms. In what follows, I sketch how STS understandings might help advance this kind of socially responsible collaboration between law and science.The central question to ask about science in legal proceedings, I suggest, is not how good it is, but how much deference the scientific community's claims deserve in specific legal contexts. The answers, in turn, can be framed in terms of a "cascade of deference," from a relatively high point, where it makes good practical sense for the law to cede epistemic primacy to claims originating in science, to a point of little or no deference, where the law's core concerns for representation, accountability, and justice, as defined by legal norms, should take precedence over science's claims to higher authority. I will identify and discuss four stopping points, or viewing platforms if one wishes for a more tangible metaphor, along that cascade: objectivity, consensus, precaution, and subsidiarity. …

35 citations


Journal ArticleDOI
TL;DR: This article conducted a qualitative examination of the courts' review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency's (EPA's) National Ambient Air Quality Standards (NAAQS).
Abstract: The role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora's Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts' review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency's (EPA's) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts' review of scientific challenges to the EPA's NAAQS over time that tracked the Agency's own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decision-making processes, the resulting agency efforts have a reciprocal, positive impact on the courts' own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making.IntroductionThe role of generalist courts reviewing the work of expert agencies in the United States is generally portrayed as an institutional necessity on the one hand and a Pandora's Box on the other. Louis Jaffe once wrote that "[t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid."1 But courts do not have the expertise of the agencies they are reviewing; they are legal institutions. They are also not political and need to restrain from becoming amateur policy makers in the course of their review. By granting courts authority to review science-based regulatory decisions, there is a risk they will unravel layers of careful scientific work as a result of their combined ignorance and judicial second-guessing.The promise and perils of judicial review of agency science has been a longstanding puzzle, tantalizing scholars and commentators alike.2 Judges have openly admitted they are engaging in experimental strategies in reviewing challenges to agency science,3 while simultaneously posing the overarching question: "What does and should a reviewing court do when it considers a challenge to technical administrative decision-making?"4 On the other hand, it is well known that a variety of evils-ranging from agency incompetence to special-interest capture to illicit political manipulations-have been concealed from view by agency computational models and scientific terminology.5 Indeed, agency technical rules may be the new playground for beltway politics, a proclivity ripe for judicial oversight.Over the last several decades, scholars have pored through court opinions in search of the answer to this puzzle of judicial review of agency science. But in this work, they have come up empty-handed, concluding that courts essentially pass agency scientific judgments through without engaging in the substance. …

18 citations


Journal Article
TL;DR: It is claimed that while current practices of organ procurement do cause the death of the patient, they are nevertheless ethical because: (1) they are performed with the patient's or surrogates' consent, and (2) they do not harm or set back the interests of the customer (principle of nonmaleficence).
Abstract: The Uniform Determination of Death Act defines death as either the irreversible cessation of all circulatory and respiratory functions or of all functions of the entire brain. As a matter of scientific fact, many patients declared dead for purposes of organ donation do not meet this legal requirement. In addition, many of these patients have not lost "the integrated functioning of the organism as a whole," a scientific standard that defines life across the entire biological spectrum, not just in humans. As such, current practices violate the implicit ethical and legal principle known as the "dead donor rule," which states that vital organs may never be removed from patients before they are dead.I claim that while current practices of organ procurement do cause the death of the patient, they are nevertheless ethical because: (1) they are performed with the patient's or surrogates' consent (principle of respect for autonomy), and (2) they do not harm or set back the interests of the patient (principle of nonmaleficence). While the ideal long-term solution is to reframe the ethics of vital-organ donation in terms of these principles rather than the dead donor rule, a more practical short-term solution may be to conceptualize current approaches to defining death as socially acceptable "legal fictions," acknowledging that they are not biologically valid. Not only would this solution create a more honest and transparent public policy, but it would save lives by increasing both the quantity and the quality of organs available for transplantation.IntroductionThe "dead donor rule" (DDR) is a principle that has been an implicit ethical and legal requirement in the procurement of organs since the beginning of the transplantation enterprise in the 1960s.1 The rule has been expressed in various formulations, including: (1) vital organs for transplantation may only be procured from patients who are dead, or (2) physicians may not cause death when procuring vital organs for transplantation.2 The rule does not exist literally in the law, but rather is understood to be an implication of existing laws and ethical standards related to homicide.3This Article is divided into three Parts. Part I gives a historical and conceptual background to organ donation. Part II advances an argument that is purely scientific in nature and relies only on careful examination of the biological facts about patients currently diagnosed as dead for purposes of organ donation. I will conclude that many patients currently deemed to be legally dead for purposes of organ donation are not in fact dead by any scientific or biological standard. If this claim is correct, then it follows that our current practices of organ procurement do not conform with the DDR.While the majority of experts and commentators on the subject argue that we should not abandon the DDR, it is important to be clear that unless this claim can be shown to be false, there is no way that we can continue our current practices in organ procurement and continue to hold allegiance to the DDR. Again, I want to emphasize that this argument does not depend upon any ethical or value assumptions, but rather is a narrow scientific argument that the biological claims made by others over the years cannot withstand critical scrutiny.In Part III, I explore the options that are available to us, if indeed the claim made in Part II is correct. One option, of course, would be to confirm the authority of the DDR and to stop procuring organs from individuals that we have previously considered to be deceased. This option would have tragic consequences, resulting in the premature death of thousands of patients each year from failure to receive a life-saving organ, as well as failure to honor the altruistic requests of many individuals to donate their organs to others when they are no longer in need of them.A second option, which I will argue is the best long-term solution, is to reconsider the ethical and legal foundations of organ procurement and explore whether it may be ethically and legally permissible for patients to donate vital organs before they are dead, provided certain other requirements are met. …

8 citations


Journal Article
TL;DR: In 2014, states began enacting laws giving terminally ill patients a "right to try" investigational drugs as discussed by the authors, and by early 2015, right-to-try bills had been introduced in many other states.
Abstract: In 2014, states began enacting laws giving terminally ill patients a "right to try" investigational drugs. Right-to-try laws are the latest policy development in a decades-long struggle between advocates of liberal access to investigational drugs and defenders of access restrictions. According to access advocates, physician opinion and minimal safety testing are an adequate scientific basis for allowing terminally ill patients to try investigational drugs. But science and policy experts are virtually unanimous in criticizing right-to-try laws. According to the experts, more rigorous scientific and regulatory oversight is necessary to justify wide patient access. In defense of their position, experts cite data on investigational drug risks and low success rates, as well as the public interest in a rigorous drug-evaluation system. Access advocates use a different strategy, however-one that highlights stories of patients and families pleading for investigational drugs. These stories strongly influence legislative and public opinion on access policy. To mount an effective response, experts must tell stories illustrating the harm that liberal access can produce. In this arena, experts must convey their concerns in ways that are meaningful to lay decision makers.IntroductionIn 2014, several state legislatures confronted a novel policy proposal. They were asked to consider bills recognizing the terminally ill patient's right to try investigational drugs.1 The bills sought to allow patients to use investigational drugs without the United States Food and Drug Administra- tion's (FDA's) permission.2 Five states adopted right-to-try laws in 2014, and by early 2015, right-to-try bills had been introduced in many other states.3Right-to-try laws are the latest policy development in a decades-long struggle between advocates of liberal access to investigational drugs and defenders of access restrictions. According to liberal-access advocates, physician opinion and minimal safety testing are an adequate scientific basis for allowing terminally ill patients to try investigational drugs. But scientific and other experts dispute this claim. Right-to-try laws would do more harm than good, experts say, by exposing patients to risky and ineffective agents. The laws would also pose an unacceptable threat to the larger group of patients who benefit from receiving drugs that have undergone thorough human testing. Experts predict that if terminally ill patients can easily obtain investigational drugs, fewer patients will be willing to participate in the clinical trials that determine which drugs can actually help patients live longer and better lives.Experts are nearly unanimous in opposing right-to-try laws. In defense of access oversight, scientists, FDA officials, and policy experts cite data on investigational-drug risks and low success rates, as well as the need for a rigorous drug-evaluation system. But in the access debate, data and abstract policy considerations go only so far. Access advocates use a different strategy, one that highlights individual patients' stories. To support their cause, access advocates offer heartrending accounts of terminally ill patients seeking investigational drugs and deceased patients who were denied such drugs. These stories strongly influence legislative and public opinion on the access question.4It's inevitable that patients' stories will shape public and legislative opinion on access policy. But policy decisions should take into account the full range of patient experiences with investigational drugs. Stories illustrating the harm that can come from liberal access belong in the debate too. An adequate response to the right-to-try campaign will require experts to vividly describe the negative impact that liberal access can have on patients.In this Article, I examine the right-to-try controversy and the role patient stories play in the debate. Part I reviews the history of investigational drug regulation and current rules governing investigational drug access. …

8 citations


Journal Article
TL;DR: Babick was convicted of arson and felony murder and sentenced to life in prison when a jury found that he had set the home of his drug dealer ablaze, killing two sleeping children as mentioned in this paper.
Abstract: IntroductionIn 1996, Andrew Babick was convicted of arson and felony murder and sentenced to life in prison when a jury found that he had set the home of his drug dealer ablaze, killing two sleeping children.1 Babick claimed that he had not been involved and that the fire must have been accidental.2 As a federal appeals court deciding Babick's habeas petition would later observe, the direct evidence of Babick's culpability was thin: While Babick admitted that he had visited the home twice the night of the fire, only the shaky and self-interested testimony of the home's owner established that Babick had visited close in time to the blaze.3But other aspects of the state's case were powerful. The state presented two experts in fire science who testified that their investigation of the crime scene revealed that the fire had been deliberately set.4 Drawing on then-widespread beliefs in the fire-investigation community, the state's expert testified that the characteristics of visible burn patterns, including their lack of a "V" shape, established that the fire had been caused by flammable liquid poured throughout the home.5 Also appearing as a state's expert was a fire-department dog handler who testified that his dog, Samantha, had canvassed the crime scene and alerted to the smell of fire accelerants-a technique pioneered by the Bureau of Alcohol, Tobacco, and Firearms in 1982.6 Although laboratory testing had not detected accelerants inside the home or on evidence recovered from Babick, the handler testified that Samantha's detection abilities were more sensitive than laboratory equipment and that the dog was "100 percent correct every time" she alerted to chemicals.7Babick's lawyer attempted to mount a challenge to the scientific evidence, but was unable to find experts willing to testify contrary to the state's proffered analysis.8 This was so, notwithstanding that four years prior to Babick's trial the National Fire Protection Association had published NFPA 921, a Guide for Fire and Explosion Investigations (NFPA 921), which set forth several concepts of fire science and procedures for fire investigation that contradicted the state's experts' use of burn patterns to identify accelerant.9 In particular, NFPA 921 recognized that advances in scientific understanding had displaced conventional wisdom about the observed traits of natural and accelerant-driven burn patterns with the concept of "flashover"-a stage of fire in which combustion makes naturally and accelerant-caused burn patterns frequently indistinguishable.10 NFPA 921 also rejected the use of canine alerts not confirmed by laboratory analysis.11Widespread acknowledgement and acceptance of NFPA 921 in the fire-investigation field took time, however. Fire-investigation training and practice increasingly rejected visual burn-pattern analysis as a reliable method of identifying chemical accelerant.12 In 2000, the Department of Justice's Technical Working Group on Fire/Arson Scene Investigation published a report identifying NFPA 921 as the "benchmark for the training and expertise of" fire experts,13 a conclusion that courts increasingly reached as well.14 In 2014, Babick, represented by lawyers from the University of Michigan Law School Innocence Clinic, persuaded a Michigan state court that the eighteen years since his conviction had seen the emergence of a new consensus surrounding fire science and that this constituted newly discovered evidence warranting a new trial.15Babick's case is one of hundreds of arson convictions whose factual basis has been undermined by significant new developments in fire science.16 It is also one of many, many more convictions in which scientific testimony that passed muster at the time of trial is substantially called into question by changed understanding in the relevant field.17 Of course, the potential for changed scientific understanding to undermine the factual basis for criminal convictions is endemic to the justice system's use of scientific evidence in adjudicating guilt. …

7 citations


Journal Article
TL;DR: In this paper, the authors evaluate the value of merger litigation by empirically testing the relationship between merger litigation and shareholder voting on the merger and find no significant evidence that disclosure-only settlements affect shareholder voting.
Abstract: Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result are beneficial to shareholders.This Article offers a new approach to assessing the value of these claims by empirically testing the relationship between merger litigation and shareholder voting on the merger. If the supplemental disclosures produced by the settlement of merger litigation are valuable, they should affect shareholder voting behavior. Specifically, supplemental disclosures that are, in effect, "compelled" by settlement should produce new and unfavorable information about the merger and lead to a lower percentage of shares voted in favor of it. Applying this hypothesis to a hand-collected sample of 453 large public company mergers from 2005 to 2012, we find no such effect. We find no significant evidence that disclosure-only settlements affect shareholder voting.These findings warrant a reconsideration of Delaware merger law. Specifically, under current law, supplemental disclosures are viewed by courts as providing a substantial benefit to the shareholder class. In turn, this substantial benefit entitles the plaintiffs' lawyers to an award of attorneys' fees. Our evidence suggests that this legal analysis is misguided and that supplemental disclosures do not in fact constitute a substantial benefit. As a result, and in light of the substantial costs generated by public-company merger litigation, we argue that courts should reject disclosure settlements as a basis for attorneys' fee awards.Our approach responds to critiques of merger litigation as excessive and frivolous by reducing the incentive for plaintiffs' lawyers to bring weak cases, but it would have an additional benefit. Current practice drags state court judges into the task of indirectly promulgating disclosure standards in connection with the approval of fee awards. We argue, instead, for a more efficient specialization between state and federal courts in the regulation of mergers: public company merger disclosure should be policed by the federal securities laws while state corporate law focuses on substantive fairness.It is a fact evident to all of those who are familiar with shareholder litigation that surviving a motion to dismiss means, as a practical matter, that economical rational defendants . . . will settle such claims, often for a peppercorn and a fee.1-Chancellor William T. Allen in Solomon v. PatheIntroductionDeal litigation is pervasive in the United States. Multiple teams of plaintiffs file lawsuits challenging virtually every public company merger,2 often in multiple jurisdictions.3 Moreover, the frequency of merger litigation has risen sharply over the last several years.4 In 2012, 93% of deals over $100 million and 96% of deals over $500 million were challenged in shareholder litigation.5 In 2013, the frequency was even higher-97.5% of deals over $100 million were challenged through litigation, and each transaction triggered an average of seven separate lawsuits.6Although deal litigation is pervasive, these lawsuits rarely result in a monetary recovery for the plaintiff class. Rather, the vast majority end in settlement or dismissal. In most settled cases, the only relief provided to shareholders consists of supplemental disclosures in the merger proxy statement.7 In compensation for the benefit produced by these settlements-often worth no more, in the words of a famous jurist, than a "peppercorn"-plaintiffs' attorneys receive a fee award. …

7 citations


Journal Article
TL;DR: The use of criminal records in hiring must be constrained because of the enormous and detrimental effect of these sweeping bans as mentioned in this paper. But are criminal records always relevant? For example, does it really matter that a breakfast server might have a minor drug offense on his or her record? Probably not, in most cases-but the one-fifth of Americans with a criminal record face widespread discrimination when seeking employment.
Abstract: IntroductionEvery week, more than 10,000 people are released from state and federal prisons in the United States.1 Among the myriad areas in which these individuals face hurdles is employment. At first glance, this makes some sense: ex-offenders have violated society's rules, and the record of that violation could be valuable to employers in making hiring decisions. Certainly some convictions are relevant in employment, even for low-level positions with little exposure to cash or customers. But are criminal records always relevant? For example, does it really matter that a breakfast server might have a minor drug offense on his or her record? Probably not, in most cases-but the one-fifth of Americans with a criminal record2 face widespread discrimination when seeking employment.This Note argues the use of criminal records in hiring must be constrained because of the enormous and detrimental effect of these sweeping bans. Part I discusses the background of this issue. The vast majority of employers use criminal background checks today, and an estimated one in five Americans has a criminal history. This combination defeats equal opportunity, and because employment can decrease recidivism rates, it also harms public safety and the economy. Employers should therefore be restricted to some extent in considering criminal records.But employers do sometimes have a legitimate interest in examining a candidate's background. Thus, Part II dissects stakeholder interests and articulates four ideal components of any policy regulating this practice. First, employers should consider the age of a conviction. Second, any inquiry about convictions should be delayed past the initial application. Third, employers should only consider convictions that are legitimately probative of job performance and disregard unrelated, potentially prejudicial convictions. And fourth, inquiries should incorporate a buffer mechanism, whereby the individual assessing a candidate's criminal record shares convictions with the hirer and supervisor only on a need-to-know basis. This buffer would ensure ex-offenders get a truly fair chance while allowing employers to consider fully an applicant's criminal record.Given these elements, Part III examines existing remedies, legislation, and policy approaches to this issue. The two main approaches-disparate impact liability under Title VII of the Civil Rights Act of 1964 and fair-chance (also known as "ban the box") policies-can be strong remedies, as they generally incorporate almost all of the elements articulated in Part II. But both approaches have their limits. Disparate impact, by its very7 nature, provides a remedy only when discrimination has a disparate impact based on race, leaving a large portion of the ex-offender population with no remedy.3 Fair-chance policies often apply only to government employers. And existing fair-chance policies almost universally fail to include a buffer mechanism-zero of the nineteen states and just five of the 116 cities and counties that have banned the box incorporate this concept. Thus, I argue future adopters of fair-chance policies should ensure such policies apply to private employers and incorporate the buffer mechanism articulated above. Finally, I briefly discuss how these remedies can and should be supplemented by publicity7 campaigns and policy changes like negligent-hiring-liability reform.I. Identify ing and Diagnosing the IssueA. Overincarceration and the Effect of Criminal Records in EmploymentThe population affected by criminal background checks is enormous, and the consequences can be severe. More than 620,000 sentenced prisoners were released from prisons in the United States in 2013.4 Although it is not clear how many Americans have a criminal history,3 a 2011 study estimated 65 million Americans-around one in five-have a criminal record.6 And the majority of employers use criminal background checks, a trend that has been amplified in recent years. …

7 citations


Journal Article
TL;DR: In this article, the authors introduce the growing field of human capital law at the intersections of IP law, contract and employment law, and antitrust law and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.
Abstract: IntroductionContemporary law has become grounded in the conviction that not only the outputs of innovation-artistic expressions, scientific methods, and technological advances-but also the inputs of innovation-skills, experience, know-how, professional relationships, creativity, and entrepreneurial energies-are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property (IP) but also "cognitive property." The new cognitive property has emerged under the radar, commodifying intellectual intangibles that have traditionally been kept outside of the scope of intellectual property. This Article introduces the growing field of human capital law at the intersections of IP law, contract and employment law, and antitrust law and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.Regulatory and contractual controls on human capital-postemployment restrictions, including noncompetition contracts, nonsolicitation, nonpoaching, and antidealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as nonpatentable and noncopyrightable ideas; and nondisclosure agreements, trade secret laws, and economic-espionage prosecution against former insiders-are among the fastest growing frontiers of market battles.2 Regionally and globally, these disputes heavily shape industrial competition. Through this web of extensively employed mechanisms, knowledge that has traditionally been deemed part of the public domain becomes proprietary. Pre-innovation assignment agreements regularly go beyond the subjects that IP deems commodifiable. They also regularly reach into the future, propertizing innovation that has not yet been conceived. Nondisclosure agreements span beyond traditionally defined secrets under trade secrecy laws and are routinely enforced by courts.3 Violations of secrecy requirements are also increasingly criminalized, chilling exchanges that are recognized as productive and consistent with professional norms. Noncompete agreements are now required in almost every industry and position, stymieing job mobility and information flows. Beyond the individualized agreements between firms and employees, new antitrust investigations of Silicon Valley giants, including Apple, Google, Intel, eBay, and Pixar, reveal the rise of collusive antipoaching agreements between firms. Postemployment restrictions have become so widespread that they form a cognitive property thicket that curtails efficient recruitment efforts and entrepreneurship.While IP law restricts knowledge and information that cannot be taken out of the public domain, this delicate balance is subverted in the emerging field of human capital law. In patent law, the lines between nonpatentable abstract ideas and patentable inventions are heavily monitored. Most recently, in June 2014, the Supreme Court unanimously ruled that a computer-implemented electronic escrow service for facilitating financial transactions was ineligible for patent protection because the claims were drawn to an abstract idea rather than a patentable invention.4 Similarly, in copyright law, the boundaries between expressions and ideas are extensively policed to ensure that ideas themselves will not become property.5 And yet, this Article uncovers how the logic of IP, cautiously maintaining a balance between monopolized information and the public domain, between propertized intangibles and knowledge flow, is undermined by a second, rapidly growing layer of cognitive controls through human capital law. The expansion of controls over human capital has thus become the blind spot of IP debates.The talent wars are heated. More than ever before, the recruitment, retention, and engagement of employees sit atop businesses' priority lists,6 and yet human capital law remains diffuse and murky. Analyzing the current state of human capital law against new empirical research, this Article challenges orthodox economic assumptions about the need for cognitive property, demonstrates the inadvertent harm from the unrestrained shifts toward such controls, and calls for the recognition of human capital as a shared public resource. …

7 citations


Journal Article
TL;DR: For example, this article found that around three-quarters of the cases involved some form of mistaken eyewitness identification, while false confessions were less commonplace but still far from rare, appearing in nearly one-sixth of cases.
Abstract: Over the last several decades, research psychologists have entered the courtroom with increasing frequency to testify on behalf of criminal defendants. Their role has primarily been to show how social-science evidence complicates the conventional wisdom about certain kinds of critical and often-used evidence. These witnesses challenge, and sometimes even debunk, commonsense views about categories of evidence that juries tend, on the whole, to find very persuasive, like eyewitness identification testimony and even that so-called "queen of proofs," the confession.1 These experts educate judges and juries about the substantial body of research that shows, for example, that eyewitnesses-even those who have a great deal of genuine confidence about their own accuracy-are sometimes mistaken when they identify someone as the perpetrator.2 They teach the fact finders that memory operates not at all like a point-and-shoot camera; rather, honestly held beliefs about what a witness claims to have seen or experienced may be distorted, inaccurate, or even completely wrong.3 They describe the dangers of certain lineup procedures that may increase the chances that a witness makes an erroneous identification.4 They describe the reality, surprising to many, that innocent suspects under interrogation by the police sometimes really do confess to crimes in which they actually played no role at all.5The judicial reception of these forms of psychological evidence has been stuttering and somewhat rocky, but overall it is fair to say that there is growing acceptance of the legitimacy of these kinds of expertise. In fact, a number of courts have held that when an eyewitness identification by a stranger is at the heart of the prosecutor's case, the trial court's exclusion of a qualified defense expert who could have educated the jury about relevant social-science findings about the danger of mistaken identifications can even be reversible error.6 Courts in recent years have shown increasing concern and interest in the problem of unduly suggestive lineup procedures as well.7 For false-confession evidence, the trend line remains somewhat more uneven; while some courts do continue to exclude the evidence, often on the grounds that it is unnecessary or invades the province of the jury (by indirectly opining on credibility), many others do permit such expertise.8The recent increased focus on and knowledge about wrongful convictions have spotlighted the importance of these kinds of psychological evidence. The rise of DNA evidence and the concomitant Innocence Movement have exposed the significant dangers of erroneous eyewitness identifications and false confessions, among other kinds of evidence. In a close look at the first several hundred DNA exonerations, Brandon Garrett found that around three-quarters of the cases involved some form of mistaken eyewitness identification.9 False confessions were less commonplace but still far from rare, appearing in nearly one-sixth of the cases he examined.10This prevalence of mistaken eyewitness identifications and false confessions among known wrongful convictions strongly suggests that fact finders sometimes risk overvaluing or misinterpreting these kinds of evidence. By educating the jury about social-science research, expert psychological evidence may give the jury better tools for assessing probative value more accurately. Teaching about risk factors for erroneous identification or mistaken confession may enable savvier assessment of these kinds of proof in the particular case-and helping fact finders to assess these kinds of evidence with an informed, critical eye may even help reduce wrongful convictions.That said, expert psychological evidence is only one possible method among several for attempting to reduce wrongful convictions based on erroneous eyewitness identification or inaccurate and false confessions. Moreover, realistically it is simply not an approach that can feasibly be used in the very large number of cases in which these forms of evidence play a starring role. …

Journal Article
TL;DR: State constitutional case law from 1776 up to 1868 is analyzed in this article, showing that the Lockean Natural Rights Guarantees in most state constitutions had great significance with respect to the abolition of slavery and the extension of civil and political rights to individuals and minority-group members living in the northern states.
Abstract: The debate as to what unenumerated rights, if any, are protected by the Constitution is directly relevant to the most controversial issues in constitutional law today from gay marriage, to gun-control measures, to substance-control regulation, to specific personal liberties, and finally to property regulation, to name just a few. Much of the unenumerated rights debate centers on the U.S. Supreme Court's substantive Due Process Clause case law interpreting the Fourteenth Amendment. These cases address the question of which specific rights are implicated by the protection of life, liberty, and property in the Due Process Clause of the Fourteenth Amendment. Some Justices on the U.S. Supreme Court have written or joined opinions that argue that the answer to this question can be found by looking for rights that are deeply rooted in American history and tradition at the most specific level of generality available. State constitutional case law from 1776 up to 1868 is thus potentially of great relevance to understanding American history and tradition because by 1868, the year the Fourteenth Amendment was ratified, two-thirds of the existing state constitutions contained what we refer to as "Lockean Natural Rights Guarantees," provisions protecting life, liberty, and property and guaranteeing inalienable, natural, or inherent rights of an unenumerated rights type. In this Article, we identify and exhaustively analyze nearly a century of state case law from the time of the Founding until 1868, in which state courts interpret and apply state constitutional Lockean Natural Rights Guarantees to an enormous variety of issues. From this robust body of state constitutional case law, we conclude that the Lockean Natural Rights Guarantees in most state constitutions had great significance with respect to the abolition of slavery and the extension of civil and political rights to individuals and minority-group members living in the northern states. At the same time, with respect to property regulation, state courts struggled to give concrete meaning to the Lockean Natural Rights Guarantees in their state constitutions, and while not discounting the possibility that some regulations could violate the Guarantees, the state courts generally deferred to the legislature. This evidence suggests that "liberty," in the context of the Fourteenth Amendment, is best understood broadly to encompass natural rights and to require that civil and political rights be extended to minorities, a finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Natural Rights Guarantees and inconsistent rulings in many areas also suggest that determining which specific rights are implicated by the protection of liberty posed the same challenge to state courts between 1776 and 1868 that present courts face today, and that the quest to identify unenumerated rights that are deeply rooted in American history and tradition is itself somewhat quixotic. Language: en

Journal Article
TL;DR: The notion of property in land has been used as a metaphor for the despotic dominion of the real property owner in the legal domain of intellectual property (IP) debates as mentioned in this paper.
Abstract: I. Introduction: One Property or Many?Among lawyers, perhaps the most famous description of property is William Blackstone's reference to the "sole and despotic dominion" of the real property owner.1 Even in Blackstone's day the statement was more theatrical than strictly descriptive, but theater can prove irresistible. Debates among property theorists about just how despotic the landowner's dominion should be have been heated and nearly all-consuming. This Article considers an opportunity cost of that preoccupation, which concerns the way that the category of "property" is understood. The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking, with clear consequences for theory and doctrine alike.2In particular, the despotic dominion of the property-in-land paradigm has shaped the debate about whether intellectual property (IP) is, or should be, property. IP scholars have pursued the property inquiry within a conceptual framework derived from common law property doctrines and organized around the practical and theoretical problems associated with property rights in land. Even scholars who want to resist the perceived tyranny of the real property owner's dominion nonetheless embrace the more deeply rooted conceptual tyranny of real property as the paradigm case.The reliance on a real property framework is especially odd because the resources at the center of contemporary debates about the appropriate extent of IP-rightholder control could not be more different from land. Consider first some examples from the domain of copyright: land sometimes is more valuable in larger tracts, but individual contributions to a motion picture or a large and complex computer program must be aggregated with many other contributions for their value to be realized at all. Other types of copyrighted expression are routinely disaggregated- sliced and diced, fractionated and reused, in ways that land is not and could not be. Clips from news programs and popular audiovisual works appear as featured material or background material in documentary and feature films; public performance rights in popular songs are licensed for synchronization with films, television programs, and advertisements; visual artworks may appear in the promotional materials for arts organizations; and excerpts from creative works of all types routinely appear in so-called user-generated content, such as videos posted on YouTube for the world to see. On the technical side, operating systems for personal computers and mobile devices implicate thousands upon thousands of patents. High-technology companies amass patent portfolios to bolster their competitive position- but then may form patent pools to ameliorate holdup problems. So-called patent trolls that acquire previously obscure patents and seek to enforce them can send shock waves through entire industries. In each of these cases, the structure of the underlying IP entitlement is profoundly important; it determines what can be done without asking permission, what requires negotiation, and how negotiations will proceed. And in each case, the atomistic model of property in land provides a very poor template for sorting through the allocative and distributive problems that legal decision makers must confront.The label "property" does bear on the optimal institutional resolution of these and other difficulties but not in the way that participants in the debates about IP as property have assumed. IP is a species of property, but understanding the significance of that label by reference to land as the paradigm case is a mistake. Property is, to borrow Thomas Merrill's phrase, "an institution for organizing the use of resources in society."3 To have a sensible discussion about organizing resource use most effectively and appropriately, one must admit to coequal status as paradigmatic property other major categories of resources that are significant within our political economy. …

Journal ArticleDOI
TL;DR: The role of science and policy in the development of NAAQS standards has been explored in this paper, where the authors explore the role of policy and science in the standard-setting process.
Abstract: I. IntroductionThe elusive interaction between science and policy has dominated riskbased standard setting since the dawn of the environmental era. This is attributable in part to the fact that the regulatory agencies operate on the frontiers of scientific knowledge and in part to Congress's choice of vague language to describe the level of expected protection. This interaction is especially apparent in the Environmental Protection Agency's (EPA's) efforts to promulgate and revise national ambient air quality standards (NAAQS) under § 109 of the Clean Air Act-where the EPA has navigated the boundaries between science and policy in ways that sometimes appear arbitrary or inconsistent to outside observers. The history of the EPA's most recent revision and attempted rerevision of the primary NAAQS for photochemical oxidants (ozone), in which two EPA Administrators from different political parties reached different conclusions on the same administrative record, offers a unique perspective on the roles of science and policy in environmental decision making.Drawing on the ozone "rulemakings" as a case study, this Article will explore how science and policy interact in promulgating NAAQS. After providing an introduction to the NAAQS standard-setting process in Part II, Parts III and IV describe the EPA's 2008 revision to the ozone NAAQS and its reconsideration of the 2008 standard in 2009 through 2011. Part V then draws on the case study and the relevant academic literature to explore the roles of science and policy in environmental decision making. Part VI examines the critical question of what policy should guide the EPA's resolution of science-policy questions in NAAQS standard setting. Part VI also addresses arguments that the EPA's approach to NAAQS standard setting is incoherent because it does not provide a rational approach to determining how much risk is too much in the context of nonthreshold pollutants like ozone. This Article concludes that the EPA's traditional approach to NAAQS standard setting is neither incoherent nor irrational, and it is easily adaptable to nonthreshold pollutants.II. Promulgating and Revising Ambient Air Quality Standards Under the Clean Air ActThe Clean Air Act requires the EPA to promulgate and periodically revise national primary and secondary ambient air quality standards for "criteria" pollutants that may reasonably be anticipated to endanger public health or welfare and that derive from numerous or diverse mobile or stationary sources.1 For each of the criteria pollutants, the Agency must first prepare a "criteria document" (now called an "integrated science assessment" (ISA)) that "accurately reflect[s] the latest scientific knowledge" on the health effects of the pollutant.2 It then establishes "primary" NAAQS for each pollutant at a level that is "requisite to protect the public health" while "allowing an adequate margin of safety."3 The legislative history of the statute makes it clear that the goal of the primary standards is to ensure "an absence of adverse effect on the health of a statistically related sample of persons in sensitive groups . . . ."4 The statute directs the Agency to conduct a "thorough review" of the existing criteria document every five years and, if necessary, revise the document and the corresponding standards to reflect scientific information that has become available since the last revision.5 To assist the Administrator in her assessment of the scientific evidence, the statute creates an independent sevenmember Clean Air Scientific Advisory Committee (CASAC).6The Supreme Court elaborated on the roles of cost, risk, and uncertainty when it reviewed the 1997 revisions of the ozone and particulatematter standards in the seminal case of Whitman v. American Trucking Assn's.7 The Court carefully interpreted that section's operative phrases, "requisite to protect the public health" and "adequate margin of safety," to conclude that the statute "unambiguously bars cost considerations from the NAAQS-setting process . …

Journal Article
TL;DR: In this article, the Loyal Opposition Policy Review Board (LOPRB) is proposed to provide proactive regulatory guidance on technology usage by police departments and allow for that guidance to be specifically tailored to the local community.
Abstract: IntroductionTechnology has provided police departments with powerful tools to collect extensive data on private citizens. Those tools have captured images of every license plate passing through an intersection;1 used facialrecognition technology to determine whether Super Bowl attendees had criminal records;2 and implemented multi-technology systems that "aggregate[] and analyze[] information from approximately 3,000 surveillance cameras around the city . . . ."3 New technologies allow police departments to collect a range of data on the public space, including private citizens not under investigation, raising concerns regarding how that data may be used in the future.4 And as storage and database capabilities have become cheaper and more efficient, the potential for expansive databases has become not only a science-fiction trope5 but a reality.6But despite potential, these new tools fit poorly within the current regulatory framework. Police departments have embraced the information age with little guidance or oversight, raising significant privacy concerns regarding the effect of mass-data collection on the privacy rights the general public has enjoyed for centuries.7 At the same time, current regulatory mechanisms have not adequately addressed how police departments should use cutting-edge surveillance technologies.8 Such regulatory mechanisms often are inhibited by conflicting motivations9 or poorly adapted to technological change.10 Scholars have proposed a variety of solutions to address the privacy and criminal law concerns raised by these "datacollection technologies," but these approaches often provide inadequate flexibility to local jurisdictions to address their unique problems11 or focus too narrowly on correcting a particular, novel iteration of the problem.12To overcome this regulatory deficit, civilian oversight can provide effective regulatory oversight of police departments' use of new and emerging technologies. Specifically, I argue that a specialized form of civilian oversight, the "Loyal Opposition" Policy Review Board (LOPRB), would function as a regulatory mechanism that not only provides proactive regulatory guidance on technology usage by police departments but would also allow for that guidance to be specifically tailored to the local community.13 LOPRBs, composed of members who are informed on and invested in technology and civil rights, would undertake policy review of police department procedures for the use of new technologies and recommend "best practices" approaches to ensuring that individual privacy rights and police department investigative needs are effectively balanced.14 Such a civilian oversight mechanism would ensure that the privacy concerns of the average citizen remain protected as new technologies are incorporated into the daily operations of police departments.Part I explores the growth and impact of data-collection technologies on the surveillance capabilities of police departments. Part II discusses the concerns raised by data-collection technologies and the failures of other oversight mechanisms. Part III discusses why civilian oversight is the appropriate oversight mechanism for the usage of data-collection technologies and details the strengths and weaknesses of traditional civilian oversight. Finally, Part IV details the Loyal Opposition Policy Review Board and how LOPRBs create an effective regulatory mechanism for datacollection technologies.I. The Growth of Mass Surveillance and Data-Collection TechnologiesA. Data-Collection Technologies: Improving Surveillance CapabilitiesSurveillance has become a ubiquitous feature of the public space.15 While historically, long-term surveillance was "difficult and costly,"16 modern surveillance now "relies on widespread surveillance of the entire community."17 Modern surveillance can record a person's every move in the public space, often through methods poorly regulated under current constitutional protections. …

Journal Article
TL;DR: In this paper, the authors discuss some of the legal issues that may be implicated by the introduction of a new technology: airborne wind energy, and propose some ways to begin thinking about how to address those issues.
Abstract: IntroductionCommercial wind power generation is still, in many ways, an emerging technology. This may sound surprising for a technology that currently generates 4.4% of all energy produced in the United States,1 but the first commercial wind farm in the United States was built only thirty-five years ago-a fraction of the history of oil and gas, not to mention coal.2 These few decades have provided little time to develop the laws, regulations, and judicial decisions that define other sectors of the energy industry. We still lack definitive answers to questions of property rights associated with wind generation3 and its environmental impacts.4 Already, those questions are evolving, and advances in technology may radically alter the landscape. This Note discusses some of the legal issues that may be implicated by the introduction of a new technology: airborne wind energy.Airborne wind-energy systems (AWES),5 though still in their technological infancy, may one day change the commercial wind-energy sector. Scientists estimate that high-altitude winds contain several times the amount of energy needed to meet current global demand.6 Airborne systems hold the promise of access to that energy. Access to high-altitude wind would be both tremendously valuable and disruptive. As is often the case, though, in the uncertain legal environment that accompanies disruptive technologies, it is unclear just who will benefit from this valuable resource and how.Like other modern energy sources, high-altitude wind raises a number of novel and complex legal issues. Taking wind power into the skies raises new issues for this developing industry-sometimes simplifying and sometimes complicating existing challenges. If wind energy is to become a pillar of global energy production, these questions must be addressed, and there is no time like the present.This Note will sketch out a number of the more significant legal issues airborne systems raise and propose some ways to begin thinking about how to address those issues. Part I contains a concise history of major developments in wind energy and a summary of the current landscape of land-based wind turbines. In Part II, I discuss the reasons for attempting to harness high-altitude wind along with some of the designs available from aspiring commercial AWES providers. Part III introduces the legal landscape, compares and contrasts AWES with existing wind installations, and presents legal frameworks that might be adapted to deal with AWES. Finally, in Part IV I recommend some measures for facilitating the development of high-altitude wind farming.I. Historical Development of Wind EnergyWind energy is an abundant and versatile resource. The earliest known human application of wind power was for sailing vessels at around 5,000 B.C.E.7 Several millennia later, around 200 B.C.E., the Chinese began converting wind energy into mechanical energy to pump water.8 The Dutch landscape was famously dotted with windmills in the eighteenth century C.E.9 Within a few decades of harnessing electricity, wind energy was tapped for electrical power generation. As early as 1887, a Scottish professor experimented with wind-turbine designs to power his home.10Less than a century after that early personal experiment, the world's first wind farm was constructed in New Hampshire in 1980. The twenty-turbine farm was tiny by today's standards and a failure by most measures,11 but despite that failure, wind-turbine technology rapidly accelerated over the following decades.12 From 1980 to 2003, the capital cost of wind energy was cut by approximately two-thirds,13 and by the second quarter of 2014, the United States alone had nearly sixty-two gigawatts (GW) of installed wind-energy capacity-enough to power more than 15 million homes.14 Global installed capacity by the end of 2014 was nearly 370 GW,15 with projections of up to 2,000 GW installed by 2030.16 The United States will be contributing more than its fair share of that capacity if it reaches the goal of obtaining 20% of all energy from wind by 2030. …

Journal Article
TL;DR: In this article, the authors propose a theory of discriminatory commitment, which focuses on two phases of the commitment process: the decision phase, in which it is decided that a person meets the standards for involuntary commitment, and the provision phase in which the treatment service-the commitment-is provided or carried out.
Abstract: I. IntroductionThe Supreme Court has described involuntary commitment as "a massive curtailment of liberty."1 Commitment infringes a host of fundamental rights-"the right to liberty, to freedom of association, . . . to freedom from unreasonable searches and seizures," to privacy,2 to keep and bear arms,3 and in some cases to vote4-and confines people who have committed no crime. It entails a profound loss of personal autonomy-even bodily integrity5-including the precious right to be let alone.6 People who are committed are separated from their family, friends, and community- "held under lock and key"-and made to lead a life they did not choose.7But commitment also imposes less tangible burdens, many of which persist long after a person's release. The stigma associated with commitment is significant and may serve not only as a source of embarrassment and shame but also as a serious impediment to obtaining future employment, housing, and education.8 Hurdles in these areas often arise unexpectedly, years after a commitment has ended, frustrating efforts to leave the past behind.9 Prejudice against people with mental illness pervades our social institutions, including our mental-health system.10 Mental-health professionals11 are susceptible to the same prejudices about people with mental illness as society at large, and when these prejudices inform decisions about diagnosis and treatment-including involuntary commitment-people with mental illness (and people mistakenly regarded as having mental illness) suffer harmful discrimination and violations of their civil rights.But what does discrimination in the context of involuntary commitment look like? And how might the law provide a remedy? This Note attempts to answer both questions. Part II situates involuntary commitment in its historical context and describes the standards and practices that characterize it today. Part III explores how and why stereotypes about mental illness can influence commitment decisions. Part IV sets out a two-pronged theory of discriminatory commitment that focuses on two phases of the commitment process: the decision phase, in which it is decided that a person meets the standards for involuntary commitment, and the provision phase, in which the treatment service-the commitment-is provided or carried out. As to the first phase (the decision phase), I argue that commitment is discriminatory when the commitment decision is based on prejudice or stereotypes about people with mental illness, and I address the thorny question of how to identify such decisions. I refer to discrimination that occurs in this phase of the commitment process as "discriminatory-decision." As to the second phase (the provision phase), I argue that commitment is discriminatory when its provision-that is, its administration-fails to reasonably accommodate the committed person's disability. I refer to this kind of discrimination as "discriminatory-provision." I examine each kind of discrimination with the help of a case study that illustrates how it manifests and, I hope, why its victims deserve a remedy. Part V concludes.The theory of discriminatory commitment elaborated here has several advantages. First, it posits a viable remedy under existing federal law because it tracks the language of the Americans with Disabilities Act (ADA).12 It requires no legislative action-only an interpretation of the ADA already embraced by some courts.13 This is not to say, of course, that this theory of discriminatory commitment is incompatible with legislative reform. It is not. At turns, I point out specific reforms that would likely aid the theory's implementation. For example, I argue that the baseline standard for commitment common to all of the states-the so-called "dangerousness standard"-should include the requirement of proof of a recent, overt act showing dangerousness.14 This requirement would give teeth to existing laws, which, as discussed in Part IV, are routinely flouted by mental-health professionals and by courts. …

Journal Article
TL;DR: The fragmentation of standing into a multitude of varied, complexly related subdoctrines has regrettable current consequences, involving complexity and confusion, but it also contains a latent potential for positive development as mentioned in this paper.
Abstract: IntroductionRecent years have witnessed the accelerated fragmentation of standing into a multitude of varied, complexly related subdoctrines. Scarcely a Term goes by without the Supreme Court deciding one or more high-profile standing cases.1 Yet the Court's decisions have done little to enhance clarity in this contentious corner of constitutional law. To be sure, the problem of standing's fragmentation did not begin with the Roberts Court. Since the Court began in the 1970s to characterize standing as turning almost entirely on a single, transsubstantive, tripartite test-requiring showings of injury in fact, causation, and redressability2-commentators have complained about inconsistencies and anomalies in application.3 Over time, however, the grounds for objection and occasional befuddlement have grown, not diminished, as more controversial cases upholding standing have taken their places alongside more controversial decisions denying it.The fragmentation of standing-as I shall presently seek to describe it-has regrettable current consequences, involving complexity and confusion, but it also contains a latent potential for positive development. However opaque or inadequate the Supreme Court's opinions, over time its cases have formed patterns. As I shall explain in considerable detail, those patterns are complex, and the Court has often failed to describe-much less justify-them as such. But there are patterns nonetheless. Once identified, those patterns frequently exhibit an implicit normative logic that not only enables predictions, at least by legal experts, but also gives definition to the law that lower courts are obliged to apply. Although it is increasingly bootless to seek general rules governing standing to sue in federal court-at least beyond the frequently empty standards of injury, causation, and redressability-we can often achieve a good deal of clarity if we ask which rules apply to particular plaintiffs seeking particular forms of relief under particular constitutional or statutory provisions.4Among my central ambitions in this Article is to describe both the negative or confusion-generating and the positive or pattern-reflecting aspects of the fragmentation of standing. But my aims go beyond description. Through its several parts, this Article also pursues analytical, diagnostic, and prescriptive goals. It aims to enhance understanding of standing doctrine and the dynamics that have given it its present shape. The Article also aspires to promote realistic doctrinal reform, tailored in recognition of the sometimes unyielding factors that have occasioned standing's fragmentation.Part I provides relevant background. It offers a brief sketch of the modern history of standing doctrine, emphasizing the conceptual unity that the Supreme Court promised in the 1970s when it promulgated the apparently simple, tripartite, transsubstantive formula that makes standing invariably depend on injury in fact, causation, and redressability.Part II-which develops the Article's central descriptive theses- traces the accelerating trend toward doctrinal fragmentation, especially in decisions of the Roberts Court. On the one hand, Part II demonstrates the failure of the Court's three-part formula to explain the results that it often reaches. On the other hand, it identifies complex patterns in the Court's decisions, albeit ones that the Court has not always identified as such. In effect, Part II furnishes a re-mapping of the present law of standing.Part III advances the argument, which I expect to be uncontroversial, that the mixture of complexity and lack of articulate explanation that characterizes much of current standing doctrine is regrettable from all perspectives. But Part III marks a step along the path of inquiry, not an ultimate pronouncement. It lays the foundation for further diagnostic and prescriptive analysis.Part IV draws heavily on insights from the social sciences in identifying multiple and overlapping causes for standing's increasing fragmentation. …

Journal Article
TL;DR: The Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) as discussed by the authors was proposed to ameliorate many of the debilitating problems associated with credit card use by requiring more transparency in credit card agreements and monthly bills.
Abstract: I. IntroductionThe Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) sought to ameliorate many of the debilitating problems associated with credit card use. Before the passage of the CARD Act, credit card issuers took advantage of behavioral biases and lack of consumer understanding to engage in practices that exacerbated consumer credit card debt, contributing to a national consumer debt crisis. Scholars have described credit cards as a dangerous product in need of more regulation.1 The CARD Act addressed the problem by prohibiting some "abusive" issuer practices and requiring more transparency in credit card agreements and monthly bills.One of the more noticeable changes to credit card bills involved the minimum payment. The CARD Act amended the Truth in Lending Act of 1968 (TILA) to provide for enhanced disclosures in addition to displaying the minimum payment for any given month.2 Along with the minimum payment, monthly credit card statements must now alert customers to the downsides of paying only the minimum payment each month.3 Specifically, issuers must compare the total cost of paying off a bill by only paying the minimum monthly payment with the total cost of paying a higher amount which, if paid monthly, would pay the balance in 36 months.4 In addition, the issuer must provide a toll-free number the consumer may call to receive debt-counseling services.5Pulling from the behavioral economic and empirical literature, this Note addresses the merits and shortcomings of the minimum-payment disclosure and the 36-month disclosure, arguing that the provisions could be improved to better help consumers climb out of debt or help consumers avoid debt in the first place. Quite simply, the two disclosures do not do enough to help credit card users escape from crippling debt. One study found that by "reframing" the consumer on the 36-month target rather than the minimum payment, the disclosures led to higher monthly payments.6 Unfortunately that 36-month payment serves as an "anchor"; many consumers chose to pay the amount that pays off the debt faster, but actually paid less than a matched cohort-meaning they might have otherwise paid more each month.7 In other words, the nudge to pay a higher or "better" amount than the minimum payment works, but the target amount paid is not optimal. Other studies find the 36-month disclosure does little to mitigate the anchor effect of disclosing a minimum payment.8This Note suggests that studies be done to find a more optimal target. The 36-month target that Congress proposed and enacted helps some consumers pay more than the minimum monthly payment but not enough to avoid accumulating, in some cases, overwhelming amounts of debt. Additionally, the disclosure should be reformulated to be less confusing to consumers. I also suggest the possibility of raising the minimum payment. Finally, in order to better effectuate Congress's purpose, I suggest that policy makers should require issuers to implement commitment devices that would assist consumers in paying down their debt in a more efficient manner. Studies show consumers like commitment devices and are likely to use them if offered.9 It follows that consumers would be likely to opt into a payment-plan system that would allow consumers to control the way they pay off their debt along with the debt itself.Part II of this Note addresses the major problems that exist with credit cards and the behavioral biases that allow consumers to acquire massive amounts of credit card debt despite their best intentions. Part II also describes the CARD Act's response to these problems, including the requirement of the minimum-payment disclosure and the 36-month disclosure. Part III discusses the results of empirical analysis of how the CARD Act impacts consumers' repayment behavior and what those results mean with regard to the success or failure of the 36-month and minimum-payment disclosures. …

Journal Article
TL;DR: In this article, the authors identify the formal and informal structures in the administrative state that give rise to the skewed application of deference regimes and explore the implications of these asymmetries for administrative law.
Abstract: Deference asymmetries are unevaluated phenomena in administrative law. These asymmetries occur when an administrative agency's decision that overly favors its regulated entities is either less likely to be subjected to judicial reexamination, or if it is subjected to judicial challenge, will be afforded a more deferential standard of review than a decision that overly disfavors its regulated entities. Because decisions that are afforded a more deferential standard are more likely to be upheld, deference asymmetries could potentially function as a one-way ratchet, pushing the development of regulatory law in the pro-regulated-entity direction. In addition to providing a theoretical basis for the bias development of regulatory law that may arise from deference asymmetries, this Article identifies the formal and informal structures in the administrative state that give rise to the skewed application of deference regimes. In doing so, this Article demonstrates that deference asymmetries are not isolated to a few areas of regulation. Rather, a surprising number of agencies that regulate fields ranging from the environment, to patent law, to disability benefits face asymmetric deference with respect to their decision making. Finally, this Article explores the implications of these asymmetries for administrative law.IntroductionChevron.1 Skidmore.2 De novo. Non-reviewable. These resounding phrases represent our policy makers' efforts to calibrate the sharing of legal authority across the judiciary and administrative agencies.3 Standards of review, including non-reviewability, modulate the ability of an agency to diverge from what a reviewing court believes are the aims encoded in the statute the agency administers.4 They dictate the extent to which an agency's decision will survive judicial review when the agency deviates from the judiciary's preferred construction of a statute and adopts a legal interpretation that either more closely aligns or misaligns with the interest of the entities it regulates.5This Article contends that an agency's adoption of a legal construction that either overly favors or overly disfavors its regulated entities (i.e., favors or disfavors its regulated entities more than the court's preferred construction) and the standard of review it is afforded are often linked at a fundamental level that the existing literature has overlooked.6 Specifically, this Article's key insight is that in a surprising number of contexts, when an agency's legal interpretation overly favors its regulated entities, the legal interpretation is either less likely to be subjected to judicial reexamination or, if it is subjected to judicial challenge, will be afforded a more deferential standard of review than a construction that overly disfavors its regulated entities. This Article develops the theoretical basis for the consequences of deference asymmetries, identifies the features of the administrative state that give rise to the phenomenon of deference asymmetries, and explores these asymmetries' ramifications for administrative law. This Article uses the terms "deference asymmetry" or "skewed application of deference regimes" not to simply describe when various agency decisions are afforded different standards of review but instead to describe more specifically when an agency's legal interpretation that overly favors its regulated entities will be afforded a more deferential standard of review-including outright preclusion of judicial review-than an agency's legal construction that overly disfavors its regulated entities.The failure of the literature to conduct a systematic analysis of deference asymmetries is surprising because the stakes are high. As this Article illustrates, a systematic application of deference regimes may cause the standards of law applied by agencies and enunciated by courts to tilt in a pro-regulated-entity direction.7 This claim follows directly from the observation that the likelihood an agency's legal interpretation is upheld is a function of the standard of review applied. …

Journal Article
TL;DR: Invisible women: Mass Incarceration's Forgotten Casualties as discussed by the authors, Alice Goffman and James B. Jacobs, 2014, Boston, Massachusetts: Harvard University Press, 2015.
Abstract: Invisible Women: Mass Incarceration's Forgotten CasualtiesON THE RUN: FUGUTIVE LIFE IN AN AMERICAN CITY. By Alice Goffman. Chicago, Illinois: The University of Chicago Press, 2014. 288 pages. $25.00.THE ETERNAL CRIMINAL RECORD. By James B. Jacobs. Cambridge, Massachusetts: Harvard University Press, 2015. 416 pages. $39.95.I know why the caged bird beats his wingTill its blood is red on the cruel bars;For he must fly back to his perch and clingWhen he fain would be on the bough a-swing;And a pain still throbs in the old, old scarsAnd they pulse again with a keener sting -I know why he beats his wing!1-Paul Laurence Dunbar (1899)In 2013, Eric Holder, the former United States Attorney General, issued an urgent call for drug-law reform.2 Indeed, drug reform, decreasing mass incarceration, and reducing overcrowded conditions in jails and prisons can no longer be ignored, even by ardent tough-on-crime proponents, without acknowledging the economic and human costs of such policies.3 As Holder explained to an audience of lawyers, judges, and academics at the 2013 American Bar Association (ABA) Annual Meeting, American jails are overcrowded and unsustainable,4 packed with nonviolent drug offenders who frequently serve disparate sentences based on a strange admixture of race, class, and privilege.5 With more than 1.5 million people incarcerated in the United States, which accounts for 25% of all prisoners in the world, the failure of the U.S. drug war and sentencing policies is apparent, particularly as the United States "has only 5% of the world's population."6One year later, at the national meeting of the National Association for the Advancement of Colored People (NAACP), President Barack Obama made similar claims about the urgency of penal reform.7 He too decried the conditions of prisons and jails in the United States (following up his speech by visiting a prison).8 President Obama acknowledged the disparate impacts of policing and jailing.9 He urged that it was time to act. Like Mr. Holder, President Obama made a plea for men of color locked behind bars.10 They forgot about women.The President and his former Attorney General rooted their concern about the broader terms of criminal justice through a male-focused lens. This could have much to do with the fact that the United States incarcerates so many men. To further explicate the human and economic costs, the United States experiences the highest rate of incarceration of any country in the world-more than England (153 in 100,000), France (96 in 100,000), Germany (85 in 100,000), Italy (111 in 100,000), and Spain (159 in 100,000) combined, because the United States incarcerates about 743 per 100,000.11 More than half of U.S. incarcerations relate to drug offenses.12 In 2010, the U.S. federal government planned to expend $15 billion in its War on Drugs, at a rate of $30,000 per minute and $1,800,000 per hour.13 By 2012, the White House revised its drug budget structure, increasing its National Drug Control Budget to $26.2 billion-a significant increase from two years prior.14 Expenditures to fight the drug war dramatically increase each year; the most recent federal data reports that President Obama requested an additional $415.3 million over the 2012 enacted level of spending, expanding federal efforts by establishing "two new bureaus to the National Drug Control Budget."15However, as with any war, collateral damages accumulate, expanding the risks of battle and the suffering of those intimately involved and at the periphery. In this context, the price of war extends to "lost productivity, healthcare, and criminal justice costs,"16 burdening the federal government to the tune of $193 billion in 2007 alone.17 The drug war exacts a toll on state and local governments as well, costing them an estimated $25 billion in 2010.18 What accounts for such significant spending in light of illicit drug use remaining constant and prescription drug abuse on the rise? …

Journal Article
TL;DR: In the context of the Voting Rights Act (VRA), the concept of a "constitutional shelf life" was introduced by as discussed by the authors, who argued that a law that was constitutional at the time of enactment might become unconstitutional over time, not because the prevailing understanding of the Constitution has changed but simply because things in the world around us have changed.
Abstract: "[T]imes change."1 Those were the words of Justice Kennedy when the Supreme Court heard oral argument in Shelby County v. Holder,2 the 2013 decision that invalidated a key section of the Voting Rights Act (VRA).3 The Court found the law's coverage formula-which determined if a state or local government must obtain permission before changing voting laws-to be outdated and unconstitutional.4 The formula was designed to cover jurisdictions most vulnerable to race discrimination.5 The Chief Justice, writing for the majority, explained that this part of the law (which was written in 1965, revised in 1982, and reauthorized without change by Congress in 20066) was based on "decades-old data," "eradicated practices," and needed to be "updated."7All parties agreed the law was "rational" when written, but the Court reasoned that it now ignores developments in racial conditions such that it has grown to be irrational and bears "no logical relation to the present day."8 Stale factual assumptions in the formula rendered the law unconstitutional today even though it was constitutional in the past.9 In the Chief Justice's words, "the Act imposes current burdens and must be justified by current needs."10This reason for invalidating a law is puzzling. Adjusting for changed circumstances when interpreting the Constitution is nothing new-indeed, that argument is basically as old as the Constitution itself. John Marshall wrote that a Constitution is "intended to endure for ages to come, and, consequently , to be adapted to the various crises of human affairs."11 Oliver Wendell Holmes said the Constitution must be interpreted in light of "what this country' has become."12But the Shelby County Court answered a question different from the one asked by these jurists. Much ink has been spilled on the theoretical question in constitutional law: when do changed facts (or a changed "understanding of the facts"13) alter the way we interpret the Constitution?14 When does the meaning of the Fourteenth Amendment, for example, change to forbid racially segregated schools or bans on gay marriage? The question I will address in this Article is a different one: whether, and under what circumstances, a statute that was constitutional at the time of enactment might become unconstitutional over time-not because the prevailing understanding of the Constitution has changed but simply because things in the world around us have changed.15The question answered in Shelby County was not whether Congress had constitutional power to pass the Voting Rights Act.16 It was not even about whether our understanding of the scope of that pow er had changed from 1965 to 2013. The question was whether the passage of time and changed circumstances created a distinct reason to invalidate the law-rendering it obsolete and effectively expired.The concept I use as shorthand for this question is the prospect of a "constitutional shelf life."17 The goal of this Article is to track this idea of a shelf life across various aspects of constitutional law-, to demonstrate that the issue arises in far more contexts than one might anticipate, and then to consider w hether it is a concept capable of principled application.Although others have previously wrestled with this question from time to time,18 it is one that remains "radically under-theorized."19 Moreover, it is a question that is growing in significance today as two things change: (1) judges find themselves with new tools to examine the factual premise of a law,20 and (2) the Supreme Court is embarked on "a widespread empirical turn" where its opinions now rest more explicitly on factual claims about the way the world works.21 But, as I will demonstrate, even though facts matter a great deal to constitutional doctrine, the Supreme Court has not given clear guidance about what to do when those facts change over time.Consider, by way of comparison to Shelby County, the 1989 decision of Michael H. …

Journal Article
TL;DR: The intersection of law, science, and religion has been studied extensively in the last few decades, e.g., at the Law, Science, and Religion Symposium.
Abstract: I. IntroductionIn the relatively short span of human history, primarily three great disciplines have vied for dominance. These are law, science, and religion. Each, in its own manner, has something to say about both the descriptive world that is and the prescriptive world of what ought to be. Because these great professions cover much of the same ground, conflicts are inevitable. Indeed, from the time of Copernicus to modern debates about evolution, law, science, and religion have collided. To their great credit, the organizers of this Symposium included papers that explored the intersections of all three institutions, with most of the presenters' attention devoted to where law and science meet. In this Article, I offer some general observations regarding, in particular, the intersection of law and science but offer some tentative observations regarding where law and science have their roots-in religion.Let me begin, however, with what I believe is the first principle in regard to the study of the respective intersections of law, science, and religion, a principle that guides all that follows. Each is a separate discipline, and each has its own decision rules and reasons for interacting with the others. The interactions of the three disciplines, of course, produce four basic territorial intersections, each with its own peculiarities and with relations potentially flowing in either direction.1 Thus, for example, where law and science meet, law might use science to inform its processes or substance and, in reverse, science might use legal standards that inform its processes or substance. Each intersection represents a territorial boundary; there is no domain, at least in the United States, in which any of these disciplines truly share territory. To understand any particular intersection, therefore, one must examine it from one side of the fence or the other. My interest in the subject comes primarily from standing on the law's side of the fence, looking over at science and religion with the hope and expectation that they might help answer some of the questions the law asks. My concern, then, is how law can best employ science or religion to accomplish the needs, values, principles, and demands of the law.II. Religion Begets Science and LawOne way to understand science and law is to see them as the successors to religion. Religion, of course, has hardly disappeared from the scene. But where there was once only religion to define the empirical world, craftthe legal order, and determine the fate of people's souls, science and law have joined these efforts. Science today is primarily associated with the defining-the-world part of the effort and law the legal-or normative- order. Religion continues to hold sway over souls. Indeed, it might be thought that the three great professions of law, science, and religion have largely divided the domains of the legal, empirical, and spiritual between them. This would be a mistake, however. Although the legal, factual, and empirical domains describe these professions' respective fields of focus, they each regularly trespass on the territory of the other two.In an earlier work, Legal Alchemy, I explored one of the key transition points between religion and science. But, as I noted there, "[t]he transition from ancient sorcery to modern science . . . was not as smooth or as complete as we might like to believe."2 Indeed, Sir Isaac Newtonnot only discovered gravity and charted the heavens using calculus, but he also experimented with alchemy and numerology. Many core insights of astrology remained integral and respected components of science until the late seventeenth century. However reputable science might be today, its roots lie deep in the mystical practices and superstitions of the past.What we now consider to be within the province of science, previous centuries called the philosophy of nature or natural philosophy. Isaac Newton . . . entitled his masterwork The Mathematical Principles of Natural Philosophy. …

Journal Article
TL;DR: In 2010, Quartavious Davis committed a series of armed robberies at a Little Caesar's, an Amerika Gas Station, a Walgreens, an Advance Auto Parts, a Wendy's, and a beauty salon in the Miami area as discussed by the authors.
Abstract: IntroductionIn 2010, Quartavious Davis committed a series of armed robberies at a Little Caesar's, an Amerika Gas Station, a Walgreens, an Advance Auto Parts, a Wendy's, and a beauty salon in the Miami area.1 During the criminal investigation, the government accessed sixty-seven days of cell-site location data from Davis's service provider without a warrant.2 The data documented Davis's approximate location during the period and showed he was physically present at the various robbery scenes during the time the crimes were committed, corroborating the eyewitness testimony and other evidence used to convict him.3 When Davis later challenged the government's warrantless access to the cell-site data, the government relied on the third-party doctrine4-a constitutional rule that permits the state to access business records and transactional data about a company's consumers without constituting a Fourth Amendment "search."5A panel of Eleventh Circuit judges was not impressed.6 Davis's case drew out an inescapable flaw in the third-party doctrine. The doctrine relies on the shaky assumption that Americans should not have expectations of privacy in company records. The judges may have had little sympathy for Davis's privacy expectations while he was robbing the Little Caesar's, the Wendy's, and the other places, but they thought Davis should be able to expect privacy in his location information during the sixty or so days that he was not robbing Miami businesses.7 On those other days, he might have been "near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute."8Although the prosecutors had the better of the arguments based strictly on third-party doctrine precedent, the Supreme Court has strongly signaled that it is ready to revisit the issue. Justice Sotomayor has denounced the logic of the third-party doctrine,9 and all of the justices have openly criticized other well-established Fourth Amendment rules for being out of sync with today's technological realities.10 And so, the Eleventh Circuit panel was emboldened to recognize Davis's expectation of privacy in his cell-site location data. It ruled that the government must have a warrant to access third-party records.11 Short-lived as the civil liberties victory was (the Circuit sitting en banc reversed the panel eleven months later12), the panel's opinion and reasoning in United States v. Davis13 has significant value for showing where the Supreme Court's reasoning in recent data-surveillance cases may lead us.The Eleventh Circuit panel got the outcome right but the rule wrong. The warrant requirement is sensible when police build their cases through focused attention on a particular suspect, as they did against Davis. When police seek long, detailed data histories about a specific individual, the target's civil liberties are best protected by guarantees that the data will only be accessed when police have sufficient individualized suspicion.14 But the warrant requirement is not sensible when the police conduct an altogether different type of investigation-one that takes advantage of the searchable nature of databases.Suppose the Miami police department had requested all cell-phone service providers to query their geolocation logs to identify any customers who were at three of the robbery locations within an hour of the respective robberies. This "crime-out" type of data request is markedly different from the suspect-driven request the police actually used to get Davis's records.15 First, the privacy interests identified by the Eleventh Circuit panel are greatly reduced. The police would not know the long history of travel for Davis or anybody else whose identity was returned based on the search-query criteria. The only thing the police would know about the pool of identified customers is that they were at three of the robbery locations near the times the robberies were committed. This sort of search constrains police discretion and limits the grip of confirmation bias. …

Journal Article
TL;DR: The notion of "sovereign mistakes" was introduced by as mentioned in this paper, who argued that a state is not immune from suit when it acts as a democratic sovereign, but a necessary condition for democratic legitimacy is that the sovereign must respect citizens' fundamental constitutional rights.
Abstract: Sovereign immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular sovereignty and democratic self-rule. It is hardly surprising, then, that sovereign immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions-to revisit the fundamental question of sovereignty in a democracy. In this Article, we aim to reconcile the doctrine of sovereign immunity with the Constitution's core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic sovereign. This includes the authority to make what we will call "sovereign mistakes." For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the sovereign power of the purse. But a necessary condition for democratic legitimacy is that the sovereign must respect citizens' fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic sovereign, and it does not enjoy immunity from suit. The mantle of democratic sovereignty passes to the citizen-plaintiff instead. Part I considers and rejects the all-or-nothing approaches to sovereign immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of sovereign immunity to breathe new life into the doctrine-providing a normative justification for immunity where it lies while also carving out its limits.IntroductionFew areas of doctrine have sown as much confusion over the past two centuries as the Supreme Court's sovereign immunity jurisprudence.1 And today it appears to occupy a kind of twilight zone in constitutional theory. Its defenders, who tend towards conservative originalism, invoke a broad principle of sovereign dignity that finds no home in the constitutional text.2 Its liberal detractors, who favor expansive interpretations of rights and powers under the Constitution, instead call for a narrow reading of the Eleventh Amendment in isolation.3 We argue that much of this confusion stems from a failure to appreciate the theoretical question at the core of the doctrine: how can we reconcile it with democracy?What does it mean to say that the sovereign is immune from suit in a system of popular sovereignty? The answer to this question cannot rest in some excursion to the doctrine's historical and monarchical roots. But neither can it be wholesale rejection of the doctrine-a system of popular sovereignty is not a system that lacks sovereignty altogether. To solve this apparent morass, we offer a democratic account of sovereignty, one that both registers the importance of collective decision making and respects the fundamental rights of citizens. We therefore tie the seemingly confused doctrine of sovereign immunity to the more generalized democratic ambitions of the Constitution as a whole. We begin with the fundamental question at the heart of sovereign immunity: when may citizens sue a democratic state? Consider the following cases:* A prison guard sexually assaults an inmate, who then sues the federal government as his employer.4* A state college bookstore receives preferential transfers from a debtor who has filed for bankruptcy, and the court-appointed trustee sues to recover them to distribute them fairly.5* A federal statute requires states to negotiate with Native American tribes over the operation of gaming facilities.6 One tribe sues the State of Florida for breach of this duty, seeking to compel negotiations.7* After finding a pattern of racial segregation, a federal court orders the Governor of Michigan to fund remedial education programs as part of the desegregation decree.8These cases trace just a few of the many wrinkles in the law of sovereign immunity. …

Journal Article
TL;DR: In this paper, the authors examine how legal institutions develop procedures for resolving differences among experts and determining the role of scientific claims in justifying law and policy in the abortion debate, which is an especially fertile ground for such disputes.
Abstract: I. IntroductionDisputes over science to justify law or policy are rife in bioethical settings, as they are in many areas of law. Abortion is an especially fertile ground for such disputes. The medical context makes science relevant, and both sides in the abortion debate are strongly motivated to seek scientific support for their positions. Abortion law provides yet another occasion to examine how legal institutions develop procedures for resolving differences among experts and determining the role of scientific claims in justifying law and policy.Initially, the abortion debate concerned whether fetuses were living human beings. Opponents of abortion appealed to the science of biology, which showed that fetuses are indeed human, living, and individual. However, this biological fact did not mean that they are persons within the protection of the law.1 Here the science is not in doubt-all agree that the fetus is individual, living, and human. What is contested is whether biological status in itself confers the moral and legal rights of human persons, a distinctively nonscientific question. The Supreme Court's answer since 1973 has been consistently "no." Rights as persons do not attach until a live separation from the pregnant woman. A state may choose to protect fetuses after viability, but this accords them no constitutional status as persons.Rather, the scientific disputes of concern arise from government efforts to restrict abortion in ways other than direct prohibition. These efforts arose after Planned Parenthood of Southeastern Pennsylvania v. Casey2 reaffirmed the essence of Roe v. Wade3 but opened the door to a variety of other regulations. Gonzales v. Carhart,4 in upholding a federal ban on partial-birth abortions, gave further impetus to a restrictive regulatory strategy. The resulting laws, sometimes referred to as Targeted Regulation of Abortion Providers (TRAP) laws, have used medical and social-science claims about the health effects of outpatient abortions, the need for fully informed consent, the effect on women who have to travel far to obtain abortions, the safety of medication abortions, the neurological development needed to experience pain, and the like to support their restrictions on abortion. Sometimes there are studies available, but they may report correlations, case reports, or observations rather than statistically significant scientific findings often used in environmental, criminal justice, or drugapproval contexts. Legislators and courts, however, may treat such data as if it had that authority.Regardless of the reliability of the data, scientific disputes in abortion law involve conflicts about fact-based restrictions on abortion when there are different expert views of what that medical or social-science data show. Those desiring to restrict abortion must first persuade legislatures to accept their view of the relevancy of the "science" which they proffer. If strictures are passed, the battle usually shifts to the judicial arena, where courts are then pressed with determining the accuracy or relevancy of the science as presented by experts on either side.The role of courts dealing with abortion challenges is not simply to act like a science court or peer advisory group to pronounce on what is the best or most accurate view of the facts. Rather, it is to answer the specific legal questions that frame and limit the judicial role in assessing those facts. The relevancy of the science will depend on the specific legal questions raised by the challenge. Depending on the statute at issue, the evidence presented, and the relevant legal standard, weak science may be sufficient to uphold a law that many expert observers believe is highly questionable on scientific grounds. Changing constitutional standards, such as a more precise elaboration of the undue burden test or rethinking the viability line, may shiftthe weight accorded to one set of experts and the standard of validity that the science must meet. …

Journal Article
TL;DR: In 2013, the Supreme Court struck down a requirement that nongovernmental organizations combating HIV/AIDS must explicitly oppose prostitution to be eligible for government funding through a HIV/ AIDS program created in 2003, a program commonly referred to as the Leadership Act as discussed by the authors.
Abstract: IntroductionIn 2013, the Supreme Court struck down a requirement that nongovernmental organizations combating HIV/AIDS must explicitly oppose prostitution to be eligible for government funding through a HIV/ AIDS program created in 2003,1 a program commonly referred to as the Leadership Act. Congress imposed this restriction as part of this "comprehensive" program to address HIV/AIDS, in part, by eradicating prostitution throughout the world.2 The Court found that the requirement violated the right to free speech because an organization could be ineligible for certain funding due to its beliefs regarding the legalization of prostitution.3This Note proposes a new approach to analyzing speech requirements imposed for potential recipients to be eligible for federal funding: the government should be allowed to enforce any such speech requirements as a condition for federal funding as long as the potential recipient has other opportunities to engage in that speech. This view protects the government's interest in ensuring that its money is spent in a manner that is not only in accord with Congress's purpose for the program but that also protects the public's free speech interest in hearing a multitude of viewpoints.In discussing this new approach to analyzing speech requirements imposed on potential recipients for federal funding, this Note focuses heavily on the Court's recent decision in Agency for International Development v. Alliance for Open Society International.4 While this new approach would be applicable to all cases in which Congress imposes some speech requirement as a condition for federal funding eligibility, Alliance for Open Society International provides a good framework-and one of the more recent examples-of how this new approach would work.Part I of this Note summarizes basic background information regarding First Amendment jurisprudence on free speech and government conditions on monetary grants. Part II examines the Supreme Court's decision in Alliance for Open Society International, explaining the majority's (and the dissent's) reasoning in the case. This Part also includes a discussion of the background and Congressional intent behind the Leadership Act. Part III criticizes the decision and examines an alternative approach to considering freedom of speech claims in circumstances where an organization claims the government violated its right to free speech by requiring the organization to affirm a particular belief.I. The Right of Free Speech Can Restrict Congress from Imposing Restrictions on Government FundingUnder the First Amendment freedom of speech guarantee, Congress cannot pass a law "telling people what they must say."5 Nonetheless, in some contexts, the government can impose "a condition on the receipt of federal funds" that requires an individual (or an organization) to engage in certain speech under the Spending Clause.6Congress's ability to condition funds on an individual engaging in particular speech is limited: the requirement can become an "unconstitutional burden" on the individual's free speech rights.7 The line between what is permitted and is not permitted is "hardly clear"8-in part, because the Supreme Court has never defined that line and gives contradictory rationales for the permissibility or impermissibility of such restrictions.9II. Agency for International Development v. Alliance for Open Society InternationalSubpart A will discuss the background of the Leadership Act at issue in Agency for International Development v. Alliance for Open Society International. Subpart B discusses Congress's rationale for the pledge requirement that the Supreme Court subsequently struck down. In subpart C, the Note examines the private party's reasons-both from a policy standpoint and from a constitutional standpoint-for opposing the pledge requirement. Subparts D-F discuss the case itself and the reasoning of the Supreme Court.A. Congress Provides Federal Funds to Nongovernmental Organizations Combating HIV/AIDSIn 2003, Congress passed the United States Leadership Against HIV/ AIDS, Tuberculosis, and Malaria Act of 2003 to provide a plan from the federal government to combat HIV/AIDS internationally. …