Category: Archives
Article
Against Prosecutors
I. Bennett Capers, Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School. B.A. Princeton University; J.D. Columbia Law School.
Each year our jails cycle through approximately ten million people, the vast majority charged with nonviolent crimes. We are at a point where one in every three adults in America has a criminal record, and where for every fifteen persons born in 2001, one will likely spend time in jail or prison. Compared to other countries, the crime rate in the United States is not exceptional, and yet we have by far the highest incarceration rate in the world. None of this can be solved by simply tinkering with the machinery of prosecution. It is time to rethink why and how we prosecute in the first place. What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)? More radically, what would it mean to turn away from state controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves? This Article attempts to answer these questions.
Sep 2020
Article
Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law
Kevin M. Clermont, Ziff Professor of Law, Cornell University
Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of…
Aug 2020
Article
Lawyers’ Abuse of Technology
Cheryl B. Preston, Edwin M. Thomas Professor of Law, Emerita, J. Reuben Clark Law School, Brigham Young University
The Article is a thorough analysis of how the current scheme for regulating lawyers has failed to adapt to technology and why that failure is disastrous. It discusses (1) why technology, electronic communications, and social media require specialized attention in lawyer regulation, (2) what mechanisms can be harnessed to meet this need, and (3) the…
Jul 2020
Article
Divide & Concur: Separate Opinions & Legal Change
Thomas B. Bennett, Associate, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.
Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
Andrew D. Martin, Chancellor, Washington University in St. Louis, School of Law
Susan Navarro Smelcer, Assistant Professor of Law, Georgia State Law
To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for…
Jul 2020
Article
International Cybertorts: Expanding State Accountability in Cyberspace
Rebecca Crootof, Assistant Professor of Law, University of Richmond School of Law
States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations…
Jul 2020
Note
The Partiality Norm: Systematic Deference in the Office of Legal Counsel
Adoree Kim
The Office of Legal Counsel within the Department of Justice counsels the president on the legality and constitutionality of proposed executive action. In the early 2000s, the OLC authorized the Bush administration’s torture of foreign combatants. Scholars have deemed this an act of excessive deference and an aberration, attesting that the OLC has since reformed….
Jul 2020
Note
Using Daubert to Evaluate Evidence-Based Sentencing
Charlotte Hopkinson
Jack and Jill went up the hill,to steal a pail of water,Both were caught and sentenced to jail,But Jack came out two years later. Why? Assume that both Jack and Jill’s cases are identical in facts, procedure, jury composition, and verdict. The only relevant difference is that Jack is a man and Jill is a…
Jul 2020
Article
The Central Claiming Renaissance
Andres Sawicki, Associate Professor, University of Miami School of Law
The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn. The Court’s eligibility cases are significant outliers compared to today’s run-of-the-mill patent law because claim language plays little role in…
Jul 2020
Article
The Maternal Dilemma
Noya Rimalt, Professor of Law, University of Haifa.
This article questions the sufficiency of contemporary parental policies in undermining the gendered division of care-work at home. It reveals that despite the optimistic expectations that accompanied the enactment of gender-neutral leave legislation such as the FMLA, and the provision of equal care opportunities for men, a marked gap separates the law’s target of equal…
Jul 2020
Note
“Making America Safe Again”: The Proper Interpretation § 1101(A)(43)(S) of the Immigration and Nationality Act From both Immigration and Nationality Act From both a Chevron and a Public Policy Perspective
Jon Derenne
A recent Ninth Circuit decision, Valenzuela Gallardo v. Lynch, has created a three-pronged circuit split over the proper interpretation of statutory language in the Immigration and Nationality Act (INA). In Gallardo, the government initiated a deportation action against a Mexican alien residing in the U.S. due to his conviction as an accessory after the fact…
Jul 2020
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