Yearly Archives: 2023
Dec 6, 2023 Jessica M. EaglinCriminal Law
As mass incarceration and criminalization impact more Americans, efforts to address the impact of a criminal record on an individual have become more popular. We’ve come a long way from simply “banning the box” on employment applications. Today, states across the country are expanding access to criminal records relief for those touched by criminal law’s expanding web of enforcement. Diversion and expungement have emerged as two promising reforms to further that effort.
But how does criminal record relief work, exactly, and who benefits from it most? Amy Kimpel addresses these questions in her recent article, Paying for a Clean Record. Kimpel demonstrates that, through participation in diversion and expungement programs, defendants often incur various fees and fines that make gaining a clean record costly. This tendency disproportionately burdens poor and black and brown defendants such that these reforms threaten to entrench racial caste in the United States. Through her descriptively rich analysis of these two seemingly different practices, Kimpel help readers understand the complexity of criminal legal reform in the United States. Continue reading "Costly Criminal Record Relief"
Dec 5, 2023 Angela BanksLexImmigration
Gun violence remains a serious issue in the United States. The Gun Violence Archive reports that between January 1, 2023, and May 1, 2023 there have been 185 mass shootings that injured 744 people and killed 252 people. In 2008, the United States Supreme Court held that the Second Amendment protects an individual right to possess firearms, separate and apart from militia service in Heller v. District of Columbia. This right is held by “the people.” Yet, the Court has simultaneously held that noncitizens are not part of “the people” guaranteed a right to bear arms. In the Second Amendment context “the people” has been defined as citizens. Pratheepan Gulasekaram’s forthcoming article in the Vanderbilt Law Review explores the Supreme Court’s expansion of individual gun rights while shrinking the Court’s conception of “the people.” Gulasekaram offers a more capacious interpretation of “the people” and his analysis offers an approach for noncitizen inclusion in other core constitutional rights.
The Second Amendment’s “People” Problem begins with a history of federal regulation of gun possession and noncitizens. Gulasekaram demonstrates how the restrictions implemented stemmed from a desire to limit specific ideologies and subversive activities. Noncitizens in this context were viewed as threats to the constitutional order. Under a pre-Heller Second Amendment that focused on organized armed defense of the constitutional order, noncitizens viewed as a threat could not be viewed as “the people” who would protect the constitutional order. In Part II, Gulasekaram demonstrates how Heller’s emphasis on an individual right to self-defense does not lend itself to the same wholesale exclusion of noncitizens from “the people.” Part III presents Gulasekaram’s argument that once the right to bear arms is rooted in an individual right based on self-protection, the rationale for connecting gun rights to citizenship status disappears. Continue reading "Noncitizens as “The People”"
Dec 4, 2023 Lauren ScholzContracts
Algorithmic accountability is a pressing contemporary issue. Machine learning algorithms—also known as artificial intelligence (AI)—are used in decision-making by state and federal agencies, as well as in the private sector. The decisional outcomes from AI can be critical to the quality of life of affected people, and yet the rationale for algorithmic decisions is often obscure. Algorithmic accountability is the process of assigning responsibility for the results of decision making assisted by AI. In Contracting for Algorithmic Accountability, Cary Coglianese and Erik Lampmann argue that public procurement—or government contracting—is a tool to promote algorithmic accountability in governance and beyond.
Federal, state, and local agencies use machine learning algorithms to aid in many tasks, from forecasting crime to allocating social services. The algorithms are not always immediately successful, but there is great enthusiasm in developing AI for governmental decision-making due to the potential for efficiency and cost savings in the long run. However, most government entities do not have the expertise or resources to develop machine learning algorithms on their own. They must contract with private parties to create these tools for them through public procurement processes. Continue reading "Government Contracts, Algorithms, and the Benefits of Trial and Error"
Dec 1, 2023 Steve VladeckCourts Law
Andrea Scoseria Katz & Noah A. Rosenblum,
Removal Rehashed, 136
Harv. L. Rev. F. 404 (2023).
When Congress chartered the federal judicial system in the Judiciary Act of 1789, the creation of a chief legal officer for the government—an attorney general—was almost an afterthought. Congress addressed the issue only in the last sentence of the last of the statute’s 35 sections, and the language it used is surprisingly vague about how such an important federal officer was to be selected—providing only that “there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States . . . .” That passive voice was deliberate; the original draft bill adopted by the Senate would have had the Supreme Court appoint the Attorney General (a model that Tennessee still follows today). Muddying the waters left it open for the President to fill the position, as George Washington shortly would with Edmund Randolph.
This historical episode has been oft- and well-recounted, including by Susan Low Bloch in her canonical 1989 Duke Law Journal article on the early role of the attorney general. But it also seems like an obvious data point for contemporary debates over the “unitary executive” theory of presidential power: If the First Congress was so profoundly ambivalent about the President’s power to even select (let alone control) an officer as central to the enforcement of the laws as the Attorney General of the United States, that calls into some question the certitude with which some contemporary judges, justices, and scholars have defended the unitary executive on originalist—as opposed to normative—terms. Andrea Katz and Noah Rosenblum’s Removal Rehashed targets that certitude. Continue reading "An End Without Argument: The New Judicial Politics of Legal History"
Nov 30, 2023 Edward RubinAdministrative Law
Jed. H. Shugerman & Jodi L. Short,
Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, 65
B.C. L. Rev. __ (forthcoming, 2024) available at
SSRN (August 4, 2023).
The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.
Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage. Continue reading "Major Contradictions at the Roberts Court"
Nov 29, 2023 Anne Marie LofasoWork Law
The National Labor Relations Act is infamous for its weak remedies, particularly the Board’s lack of authority to grant punitive relief. While commentators have focused on the ineffectiveness of remedies, few have tried to answer why, on a theoretical level, those remedies are weak and ineffective. In Consequences of a Mismatch: Remedial Philosophy and Statutory Rights Under the National Labor Relations Act, Rita Trivedi tackles this question. She explains that NLRB remedies have been limited to contract-like make-whole remedies, which she calls ex-post relief, even though labor rights are not contractual rights but “something of value that [Congress] deemed worthy of protection,” which she calls ex-ante legal rights. (P. 25.)
To make her point, Trivedi breaks down her argument into five parts. She begins with the historical fact that NLRA remedies have been limited to make-whole relief, such as that used to remedy breach-of-contract claims, since the Supreme Court’s 1940 decision in Republic Steel Corporation v. NLRB. For example, the remedy for discriminatory discharge is backpay and reinstatement; however, backpay damages fail to deter most employers from violating the Act because wages are generally low. For the employer, it often pays to break the law. Continue reading "Fitting a Square Peg Into a Round Hole: The Myriad Problems with Using Make-Whole Relief To Remedy Breaches of Labor Rights"
Nov 28, 2023 Kent D. SchenkelTrusts & Estates
Adam S. Hofri-Winogradow,
The Irreducible Cores of Trust Obligations, 139
L.Q. Rev. 311 (2023), available at
SSRN, (May 30, 2023).
Trust settlors transfer gifts to trustees, but intend to benefit only the trust’s beneficiaries. So trust law ensures that trustees, who legally “own” trust property, are constrained in their actions by legal rules and fiduciary standards. But trusts are also malleable, subject to customization to achieve a settlor’s particular purposes. And that is where, according to Adam Hofri-Winogradow, in his article, “The Irreducible Cores of Trust Obligations,” a trustee’s obligations rest on “an enduring contradiction.” Hofri-Winogradow points out that trustees’ burdens include both duties and liabilities, but that trust settlors sometimes either explicitly exclude certain of these in the trust instrument, or “undermine” them by giving nonfiduciary third parties the power to direct actions of the trustee.
It is easy to see why a complete elimination of a trustee’s legal constraints would by extension eliminate the trust as a useful mechanism. Indeed, a trust without any fiduciary constraints is not a trust at all, it’s simply an equitable charge. But what trustee obligations are essential to the nature of a trust? This is a subject of considerable debate in the U.S. and abroad. Hofri-Winogradow focuses on this “irreducible core” of a trustee’s obligations, and maintains that attempts to find a single essential core are unstable within and across global jurisdictions. Given the many jurisdictions and contexts in which trusts are used, his article represents a fresh perspective on this issue. Continue reading "Towards resolving a Contradiction of Trust law"
Nov 27, 2023 Mireille HildebrandtTechnology Law
Hideyuki Matsumi & Daniel J. Solove,
The Prediction Society: Algorithms and the Problems of Forecasting the Future, GWU Legal Studies Rsch. Paper (forthcoming), available at
SSRN (June 5, 2023).
In their draft paper, The Prediction Society: Algorithms and the Problems of Forecasting the Future, Matsumi and Solove distinguish two ways of making predictions: “the first method is prophecy–based on superstition” and “the second is forecasting–based on calculation.” Initially, they seem convinced that the latter, calculative, type of prediction is more accurate and thus capable of transforming society as it shifts control over peoples’ future to those who develop or deploy such systems. Over the course of the paper, however, that distinction between deceptive prophecy and accurate prediction blurs. The authors make the argument that the pervasive and surreptitious use of predictive algorithms that target human behaviour makes a difference for a whole range of human rights beyond privacy, highlighting the societal impact these systems generate, and requiring new ways of regulating the design and deployment of predictive systems. The authors foreground the constitutive impact of predictive inferences on society and human agency, moving beyond utilitarian approaches that require the identification of individual harm, arguing instead that these inferences often create the future they predict.
Most of the points they make have been made before (e.g. here), but the lucid narrative argumentation presented in Matsumi’s and Solove’s paper could open a new conversation in the US as to how legislatures and courts should approach the issue of pre-emptive predictions with regard to constitutional rights beyond privacy. The paper also expands that same discourse beyond individual rights, highlighting the pernicious character of the manipulative choice architectures that build on machine learning, and showing how the use of ‘dark patterns’ is more than merely the malicious deployment of an otherwise beneficial technology. Continue reading "Addressing the Modern Shamanism of Predictive Inferences"
Nov 24, 2023 Leigh OsofskyTax Law
Natasha Sarin & Mark J. Mazur,
The Inflation Reduction Act’s Impact on Tax Compliance—and Fiscal Sustainability (2023), available on
SSRN (May 15, 2023).
In the Inflation Reduction Act, Congress made a monumental investment in the IRS, reversing a decades-long trend of inadequate funding. A critical question is: how much was this investment worth? Government scorekeepers came up with a number of about $200 billion (yielding a $120 billion net amount, after taking into account the cost of the increased funding). But, in a new paper, The Inflation Reduction Act’s Impact on Tax Compliance—and Fiscal Sustainability, Natasha Sarin and Mark Mazur argue that these official estimates significantly understate the return on investment in the IRS. They estimate that the funding would enable the IRS to raise at least $560 billion ($480 billion, net) over the next ten years, and that, depending on taxpayers’ behavioral response, it is possible the return may actually be closer to $1 trillion.
Sarin and Mazur’s analysis is compelling for a number of reasons. Sarin and Mazur are highly qualified experts, with a blend of extensive government, as well as academic, and other, experience, including recent stints in the Treasury Department in the Biden Administration, during formulation of the Inflation Reduction Act. Their analysis reflects this deep well of experience and training, in that it draws on government data as well as academic work regarding compliance. The result is a particularly nuanced picture of how the Inflation Reduction Act funding will affect the IRS and its collection capacity. Their conclusion – that the return on IRS funding could be approximately $500 billion in the first decade and $1 trillion in the ten years thereafter – is an important one; so is their description of all the particular ways that the IRS will improve, and why this improvement is an essential part of good governance. Continue reading "Estimating the Return on Investment in the IRS"
Nov 23, 2023 Sarah SchindlerProperty
In her important new essay, White Cities, White Schools, Professor Erika Wilson discusses the intersection of property law and education as part of an excellent symposium uniting the two topics, organized by Professors LaToya Baldwin Clark and Tim Mulvaney in the Columbia Law Review.
Wilson’s piece builds on recent law and geography scholarship by focusing on race, exclusion, and school district boundaries—topics that are familiar to those of us who teach land use and local government law but underdiscussed in the literature. Continue reading "Spatial Inequality: The Reproduction of Racial Segregation Through School District Boundaries"
