The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.

Abstract Using data from two statewide surveys conducted in 2018 and 2020, this study explores the characteristics of adults who racialize serious crime arrestees and examines if racialization influences worry of victimization in minority neighborhoods. Results show a significant increase in perceptions of Whites as the largest portion of arrestees, suggesting a reduction in racialization. Those who

Nothing can fix what that day broke inside of me and in every child in that school. My biggest fear walking into school every day is not the homework or the tests. It is the fear that I will not…

Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle & Pistol Ass’n v. Bruen,[footnote-short-crop]No. 20-843 (argued Nov.…

Introduction Debates over delegation are experiencing a renaissance.[footnote-short-crop]See generally, e.g., F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281 (2021); Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121

Gun violence is the number one issue plaguing the city in this moment. — Mayor Lori Lightfoot, July 15, 2021[footnote-short-crop]Heather Cherone, “People are Scared,” Lightfoot Says, As Violence Continues to Surge, WTTW (July 15, 2021, 12:57 PM),…

Introduction What is the relationship between the Second Amendment right to bear arms and inequality? Scholarly silence suggests a conventional view that there is no relationship between the two. In this Essay, I argue that the Second Amendment is uniquely…

Introduction Gun rights supporters appear to be on the cusp of achieving a decades-long goal: defanging licensing laws nationwide for carrying handguns in public. More than twenty states have removed all licensing requirements for concealed carry, and most of the…

Introduction Like many places in central Louisiana, Grant Parish became a haven for oil and gas prospecting in the late 1890s. Once speculators discovered the rich reserves, they hoped the new industry would displace the plantation economy that had been…

For a significant portion of American history, gun laws bore the ugly taint of racism.[footnote-short-crop]On the racist history of gun laws, see generally Clayton E. Cramer, The Racist Roots of Gun Control, Kan. J.L. & Pub.…

The COVID-19 pandemic has highlighted the issue of mobilization policies, that is, government practices directed at making the mass public voluntarily perform various behaviors for the collective benefit during a crisis. As COVID-19 vaccinations became accessible, governments faced the challenge of mass vaccination mobilization in order to achieve herd immunization. Aiming to effectively realize this

Abstract There remain serious concerns about the potential for pretrial risk assessments to exacerbate racial disparities. Yet, current evidence on differential prediction in pretrial risk assessments is limited. The present investigation tests for differential prediction by race as an indication of bias in Indiana Risk Assessment System–Pretrial Assessment Tool (IRAS-PAT) assessments. Using pooled

Abstract In the wake of the social justice movements experienced across the nation, a coordinated legislative campaign has been initiated to limit how topics related to race, racism, and gender can be discussed, taught, and researched within primary, secondary, and post-secondary education. Not only do these efforts reflect a serious attack on academic freedom, they threaten the principles of our democracy

Implementing precautionary measures that have obvious distributional consequences today but often only invisible future benefits is politically difficult. It requires that policymakers reconcile technocratic expertise with political consent. This paper traces attempts to enact such measures, focusing on countercyclical policies to limit the systemic risks of housing booms as proposed by financial stability

Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse. But the basic question of how abolitionists would address “the dangerous few” often receives superficial treatment; the problem constitutes a…

Against Constitutionalism. By Martin Loughlin. Cambridge, MA: Harvard University Press. 2022. Pp. xi, 250. $39.95. The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy. By Joseph Fishkin and William E. Forbath. Cambridge, MA: Harvard University Press. 2022. Pp. 601.…

Introduction Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution.[footnote-short-crop]See A Conversation Between U.S. Supreme Court Justices, The Relevance of Foreign Legal Materials in U.S. Constitutional…

Introduction Criminal justice reform advocates have long rallied against the criminalization of poverty in the United States. It’s well established that criminal justice involvement disproportionately affects communities of color and low-income individuals. This is unsurprising given the historic tightening of…

Absent a “clear indication” to the contrary, federal law applies “only within the territorial jurisdiction of the United States.”[footnote-short-crop]Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248…

En Banc Second Circuit Ignores HUD Regulation in Tenant-on-Tenant Racial Harassment Case

Eleventh Circuit Rejects First Amendment Claim for Residential Architecture.

Ninth Circuit Holds that Americans with Disabilities Act Prohibits Imposing Certification Requirement on Animal Who Meets Functional Definition of

Connecticut Supreme Court Invalidates Sentence that Relied on a Characterization of Defendant as a

Seventh Circuit Upholds Use of Acquitted Conduct to Triple Sentencing Exposure on a Preponderance of the Evidence.

FDA Lifts In-Person Dispensing Requirement for Mifepristone Abortion Pill.

Arizona Supreme Court Abolishes Peremptory Strikes in Jury Selection

OBJECTIVES There has been much discussion around the use of both money bail and pretrial risk assessment instruments. We examine how bail and risk scores compare in terms of their associations with failure to appear in court and rearrest during the pretrial period. HYPOTHESES Our research questions included whether bail and risk scores differed between people who did and did not experience pretrial

The likelihood that longevity will continue to increase has generated a search for regulation that make people work longer as they live longer, and thus not just containing pension expenditure but also enlarging labor supply, economic growth, and tax revenue. In public pension policy, Nordic countries have led the world with three types of approaches aimed at making people retire later. The first came

Scholars of regulation have long engaged with behavioral oriented research to assess its value for regulatory theory and practice. This book review discusses two recent publications in this area: Nudge: The Final Edition by Richard Thaler and Cas Sunstein (2021) and The Behavioral Code: The Hidden Ways the Law Makes Us Better or Worse by Benjamin van Rooij and Adam Fine (2021).

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in representative institutions authority to constitute the separation of powers by statute.  

In The Collapse of Constitutional Remedies, Aziz Huq contends federal courts exacerbate societal inequities by overzealously enforcing constitutional limits on government regulation while neglecting individual-rights violations. Though some of Huq’s criticisms are spot-on, others are overstated, and his confessed “redistributive goals” —exalting certain constitutional protections over others—imperil

Many states claim to own their water. How to understand such claims is a perennially muddied question which the Supreme Court recently failed to clarify. This Note demonstrates why states can have literal ownership of their water, and why a contrary conclusion could imperil groundwater management in the climate-changed future.

McGirt’s insistence on unambiguous proof of Congress’s intent created an opening for aboriginal-title suits against the United States. By enforcing the congressional-intent requirement, McGirt cleared the sovereign immunity and preclusion bars that have stymied such suits. An overlooked Tenth Circuit decision unknowingly demonstrated how courts can implement McGirt.  

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As support has grown to reduce the footprint of criminal law by defunding the police, volunteer prosecution—a practice that has garnered little attention—continues to expand criminal law’s footprint. Volunteer prosecutors come in many different forms, but their core similarity is that they all prosecute crime without getting paid. Some are entry-level lawyers seeking to gain a foothold in the legal

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although

We as a nation have to think deeply about what it means for a community to be safe, and what role the police play (or do not play) in achieving that safety. We have conflated, if not entirely confused, two very different things. One is the desire to be safe, and how society can assist with safety, even for the most marginalized or least well-off among us. The other is the role of the police. Contrary

In his Distinguished Lecture for the Academy for Justice,Are Police the Key to Public Safety?: The Case of the Unhoused, Barry Friedman contends that America needs to rethink the meaning of “public safety.” Guaranteeing public safety is arguably the most foundational responsibility of government. Yet a too narrow understanding of what public safety requires may be at the root of our country’s overreliance

This Essay explores the ways in which the division of funding and responsibility for various social services across local, state, and federal governments disincentivizes sound approaches to societal problems—particularly when it comes to addressing the needs of the unhoused. Whereas local governments primarily are responsible for funding and directing the police, most other services, including housing

In “Are Police the Key to Public Safety?: The Case of the Unhoused,” Barry Friedman argues that one of the problems with policing in the United States is that it encompasses too narrow a view of public safety. In the case of homelessness, this narrow view fails to understand that providing shelter and subsistence to the unhoused is providing them with a basic form of safety as well. By this view, enforcing

Nationwide, America’s middle and high school students face the threat of arrest and incarceration as a consequence of their conduct at school. Around the country, kids have been handcuffed and criminally prosecuted for things like feigned burp-ing, leaving class without permission, and getting off a bus too early. Termed the “school-to-prison pipeline,” this phenomenon has drawn increasing attention

OBJECTIVE Cross-cultural research into risk assessment instruments has often identified comparable levels of discrimination. However, cross-cultural fairness is rarely addressed. Therefore, this study explored the discrimination and fairness of the Level of Service/Risk, Need, Responsivity (LS/RNR) within a sample of Aboriginal and Torres Strait Islander and non-Aboriginal and Torres Strait Islander

OBJECTIVES The present research examined homelessness, race/ethnicity, and pretrial detention in the plea bargaining process. HYPOTHESES We predicted that homelessness, Hispanic ethnicity, and pretrial detention would be positively associated with unfavorable plea bargaining outcomes. METHOD We coded defendant characteristics and plea bargaining variables for a random sample (N = 500) of criminal cases

OBJECTIVE This field-simulation experiment was designed to compare eyewitness performance when conducting show ups and lineups under field versus laboratory conditions. HYPOTHESES We expected to replicate the findings from previous field-simulation experiments showing overconfidence in show up identifications made under field but not lab conditions, and further predicted that under field conditions

Abstract While body-worn cameras (BWCs) are increasingly becoming commonplace in police organizations, researchers and policymakers still know little about their implementation in the field and the factors related to their actual use. Using data collected from 146,601 incidents in Phoenix, Arizona, the present study examines the prevalence and correlates of BWC activation. In doing so, we examine the

The full text of this Article may be found by clicking on the PDF link to the left. Around the country, state courts are being flooded with the claims of massive repeat filers. These large corporate plaintiffs leverage economies of…

The full text of this Article may be found by clicking on the PDF link to the left. Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can…

In Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Dean Erwin Chemerinsky issues an indictment of the Supreme Court, charging that institution with facilitating undue state violence, wrongful convictions, invasions of dignity, and racial inequality.…

“You don’t want to be found dead after a shoot-out with unused ammunition.”[footnote-short-crop]Andrew Walker, Has Quantitative Easing Worked in the US?, BBC News (Oct. 30, 2014), https://www.bbc.com/news/business-29778331 [https://perma.cc/W7LH-U6M5].[/footnote-short-crop] That was the refrain of one Federal Reserve (Fed)…

The state of news media leaves much to be desired. Traditional broadcast mediums are dominated by a select few voices that overwhelmingly push partisan viewpoints. The internet grows increasingly partisan as well, algorithmically pushing viewers into “bubbles” in which they…

Sixth Circuit Holds that Severed Provisions Cannot be Applied to Violations Predating Severance

Seventh Circuit Holds that Evidence of Battering and Its Effects May Support a Duress Defense

Idaho Supreme Court Retains Federal Framework for Assessing Standing to Sue in State Court

Fifth Circuit Judges Cast Doubt on Environmental Justice Suits

Fifth Circuit Creates Circuit Split by Allowing Prefinal Judicial Review of SEC Enforcement Proceeding

Oversight Board Finds a Facebook's Rule Application Violates International Human Rights Law

Committee on the Rights of the Child Extends Jurisdiction over Transboundary Harms; Enshrines New Test