Juries are the lifeblood of our criminal justice system. As the Framers clearly understood, and as the Supreme Court has consistently reaffirmed in recent years, their value goes far beyond accuracy in individual cases. Criminal juries are a democratic bulwark against overzealous state power; they keep prosecutors and police in check. Accordingly, the disappearance of traditional criminal trials is not just a problem for individual defendants. It is a problem for all of us. In this Article, we propose a novel mechanism to (partly) restore the criminal jury to its rightful pride of place—a trial lottery. In short, a small percentage of cases that plead out should be randomly selected for jury trial notwithstanding the plea, using the plea’s terms as an upper limit on punishment. Such a system of lottery trials would yield three systemic benefits. First, it would counteract asymmetries in plea negotiations, leading to a more level field of bargaining. Second, it would ‘audit’ the law enforcement process, revealing patterns and irregularities in how police investigate and how prosecutors charge. Third, it would revitalize the role of jurors, lawyers, and judges in criminal adjudication. A trial lottery could thus restore a measure of accountability and democratic spirit to criminal justice systems that increasingly feel distressingly void of both.
Recent incidents of police violence have led to widespread reform efforts, from modest proposals to change police practices to dramatic attempts to slash funding or abolish the police entirely. But largely ignored in the debate is a simple question – how well is law enforcement currently performing its core functions? In particular, how good are the police at finding the perpetrator, arresting that person, and gathering enough evidence to start the matter through the criminal justice system? Answering this question requires close attention to the familiar, but under-studied, metric of clearance rates. Clearance rates measure the percentage of reported crimes that are “solved” by the arrest of a suspect and the filing of criminal charges. But while these rates provide one valuable measure of police effectiveness, a closer look reveals both puzzles and qualifications, each of which raise important policy questions. Using original compilations of data, this article begins by looking at the puzzles. Clearance rates for violent and property crimes have been both quite low and amazingly steady for the last 40 years. These figures are counterintuitive, because during that same period, crime first rose and then decreased dramatically; law enforcement personnel numbers increased, and then flattened; and the legal enforcement landscape appears to have tilted in the direction of the police and prosecution. Each of these changes should have significantly affected the clearance rates, but even collectively, they did not. The article then looks at possible explanations, and concludes that low and steady clearance rates are the product of relatively recent decisions about the role of police and the role of the justice system generally. Beginning in the late 1990s, when our model would predict that clearance rates would begin to increase, resources were increasingly diverted from solving traditional violent and property crimes. At the same time, a shift in law enforcement philosophy was gathering steam, one that prioritized crime prevention over crime clearance. This choice was a sensible one, as most would prefer to have fewer crimes committed rather than a higher percentage of crimes solved. But even these sensible choices have had important implications for crime victims, for criminal punishment schemes, and for the direction of police reform.
The number of civil jury trials held in federal court has dropped dramatically over the last 50 years. At the same time, the cost of litigating in federal court has increased to the point where it may no longer be feasible to litigate smaller cases. These are troubling trends. In response, some courts created expedited trial programs that allow the parties to bypass the costliest parts of the litigation process and skip ahead to a short trial. By taking the “fast track,” the parties can afford to litigate in federal court. And since the case is fast-forwarded to trial, dwindling trial rates get a badly needed boost. It seemed like a perfect solution to both problems. But the results have been disappointing. These fast-track programs have been mostly ignored, and they aren’t generating trials. Why have fast-track programs failed to catch on in federal court? To try to answer that question, we surveyed attorneys where one of these programs was available. We asked them why they did not use it and whether they would ever consider using it in the future. Our data reveal a complex network of concerns that influence plaintiffs’ and defense attorneys differently in different cases. In any particular case, one of the parties is likely to have at least one concern holding it back from giving consent. And if any party says no—for any reason—the fast track becomes a closed road. Our findings have important implications for the future of fast-track programs in federal court, and especially their role in stemming the decades-long decline in the civil jury trial rate.
The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titular purpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception is the judicial admission of a contract – where the defendant admits in his pleadings, testimony, or otherwise in court under oath that a contract (and its terms) exists. Such judicial admission of the existence of a contract seemingly completely vindicates the primary and original purpose of the statute of frauds. A defendant that judicially admits that he or she entered into a contract, has no concern that such contract is fraudulently being asserted against him. It is, therefore, “astonishing” (to use Professor Robert Stevens’ phrase) that the judicial admissions exception completely fell out of favor in England, and then the United States in the 18th and 19th centuries, and instead the dominant majority rule became the elimination of the exception. For the stated purposes of removing the defendant’s incentive to commit perjury and falsely deny the contract in order to avoid liability, the now longstanding majority rule became that a defendant could admit the contract and yet still assert the statute of frauds defense. Such rule is of dubious justification, which is why Article 2 of the Uniform Commercial Code reinstated the judicial admissions exception in the case of contracts for the sale of goods. The rule remained virtually absent in non-goods cases, however. Thankfully, and as reported by Professor Shedd in published articles in 1984 and 1991, an embryonic judicial admissions rule began to reemerge in the early 20th century, but he observed that it remained a very small minority rule. This article updates the research to the present and observes that the rule appears to still be a minority rule although the number of adoptions has increased. Nevertheless, the rule represents sound statute of frauds policy, and should be fully implemented by case decision or statute.
Western-style property systems are ill-equipped to deal with extremes—extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies—situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now dominates the American property system cannot, on its own, make the reforms needed to address problems of extremes. The assumption of a rational property owner and the individual scale of decision-making create an intrinsically self-serving system that will not, without redirection, force individual owners to consider important, outside interests or internalize serious, long-term externalities. Constitutional protection of property, with its increasingly economic focus, reinforces the owner-centric approach. Yet property systems are fundamentally important to free and secure societies. Strong property rights protect the autonomy of individuals against government and third-party infringement. They also promote economic activities, rewarding investment and labor. A strong property system, in other words, provides a way to order a society and its resources by establishing a framework for allocating, distributing, and managing interests in the resources. This framework includes organizational and operating principles that enable the society’s economic and political systems to work on a daily basis. This Article focuses on property’s problem with extremes by asking whether it is possible to have a property system that both protects individual rights and sustains the integrity of the earth system. Because of its global scale and potentially disastrous impacts, climate change provides the ultimate lens for examining property’s ability to handle extremes. Climate change is a problem that affects the whole regardless of the contributions of the part. It is a problem that needs solutions from the whole but can benefit from the responsiveness of the part. In order for Western property systems to operate in ways that minimize property’s adverse effects on the earth and on humans, some fundamental rewiring of property’s incentive structure and operating rules must occur.
This essay draws on recent studies of the federal impeachment power and the issues swirling around the presidency of Donald Trump to consider the law and politics of impeachments. The impeachment process is inescapably political, but that does not mean that there are not constitutional rules, standards and considerations that can and will shape how the politics plays out. The most challenging constitutional questions surrounding the impeachment power relate to the scope of impeachable offenses. It is possible to rule out some possible interpretations of the constitutional language of “high crimes and misdemeanors,” but the standard for impeachable offenses that we are left with will still require contestable political judgment to apply in any particular case. Knowing whether a given act could be regarded as an impeachable offense is only the first step in determining whether an individual should be impeached and removed from office.
Contributory copyright infringement has long been based on whether the defendant, “with knowledge of the infringing activity,” induced, caused, or materially contributed to another’s infringing conduct. But few court opinions or scholarly articles have given due consideration to what it means to “know” of someone else’s infringing conduct, particularly when the unlawfulness at issue cannot truly exist until a legal judgment occurs. How can one “know,” in other words, that a court or jury will deem a particular use infringement rather than de minimis or fair use? At best, contributory defendants engage in a predictive exercise — in some cases, a more certain one, to be sure, but a predictive exercise nonetheless. To recognize this is not a mere semantic excursion: once a decision maker has determined that infringement has occurred, it is more likely, through hindsight bias, to determine that a defendant “knew” of this infringement at the relevant time, despite the realities of monitoring and assessing content. Drawing on both the legal and epistemological literature, this Article recommends a better framing for the issue of knowledge in contributory infringement doctrine — an approach that has implications not only for copyright law but for the regulation of online content more generally.
The reasonable man is an anthropomorphic metaphor for legal reasoning. In this role, he sometimes shows symptoms of mental illness. He exhibits a compulsion to organize, rank, and prevent disorder, a process that can create unjust outcomes. When he is symptomatic, the reasonable man becomes a monster borne out of a fear of disorder. As the putative judge whom all lawyers write and speak in front of, the reasonable man is the reader attorneys fine-tune their arguments and language for. After developing a case history for the reasonable man, this Article engages with several questions. First, when advocates emulate the reasonable man’s white, privileged, patrimonial, and no-nonsense approach to legal reasoning, are they nurturing a monster? Second, do advocates reinforce inequality by adopting the reasonable man’s privileged persona and formalist approach to legal reasoning? And finally, if the reasonable man sometimes exhibits symptoms of a mental disorder, can our law and culture heal him?
Over the last ten years, 15.1 million people filed for bankruptcy owning 16.4 million cars. These cars provided access to work, education, medical care, childcare, food, and other life necessities. They also were major household investments, the most expensive asset most bankruptcy filers owned other than a house. Using original data from the Consumer Bankruptcy Project, we document what happens to car owners and their car loans when they enter bankruptcy. In brief, we find that people who file bankruptcy own automobiles at the same rate as the general population, and that they overwhelmingly indicate that they want to use bankruptcy as a tool to keep their automobiles. We further identify a subset of debtors, who constitute about a third of filers, who come to bankruptcy owning automobiles and little else. These cases are the most likely to be filed by people “driven to bankruptcy.” We detail what our results show about how people use consumer bankruptcy and where the system appears to falter. We conclude with recommendations on how to remedy these system issues, as well as what the future of the automobile marketplace, particularly subprime auto loans, likely means for people’s continued use of bankruptcy.
This Article argues that the Supreme Court’s use of originalism is opportunistic because sometimes the Court relies on it and sometimes it does not. This inconsistency is evident in its two most recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014), and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government’s policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a cash grant to a Christian church. The Court’s inconsistent application—even when dealing with a single clause—raises the possibility that the Court’s use of originalism is based less on principle than on desired outcomes. Part I offers a very brief primer on the Establishment Clause and on the theory of originalism. Part II performs a close reading of Town of Greece. It first examines the originalist reasoning that led the Court to uphold a predominantly Christian prayer practice. It then considers how the case might have been decided had the Court relied on conventional doctrinal tests. Part III turns to Trinity Lutheran Church. It first reviews the Court’s cursory treatment of the Establishment Clause question presented, and then considers what various originalist approaches might have made of the challenged funding.
Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often leads to abusive practices and conflicts of interest for facilities. Although technology plays a critical and expanding role in communications, a comprehensive evaluation of the methods and policies surrounding inmate communications is needed. Efforts to address incarceration rates, education, and research gaps, along with an understanding of the potential and limitations of communication technologies, are critical to the development of policy initiatives. These tools should be employed with a regulated approach to choosing and contracting for communication services to effectively reduce barriers and improve outcomes.
This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals of creating more robust and efficient litigation vehicles for trade secret misappropriation victims, thereby helping protect valuable American intellectual property assets. We find that, similar to state trade secrets law, the paradigm misappropriation scenario under the DTSA involves a former employee who absconds with alleged trade secrets to a competitor. Other results, however, raise questions about the new law’s ability to effectively address modern cyberespionage threats, particularly from foreign actors, as well as the purpose (or lack thereof) of trade secret law more broadly. We conclude by discussing our data’s implications for trade secret law and litigation, as well as commenting on the DTSA’s potential impact on the broader issues of cybersecurity and information flow within our innovation ecosystem.
Perhaps more than any other type of temporary physical occupation, flood cases raise a slough of critical issues regarding the management of vulnerable floodplain and coastal properties and compensation for government actions that affect those properties. Unpacking these issues requires a deep assessment of the interrelated concepts of torts, takings, and property. The threshold inquiry is whether the claims should be characterized as torts, which warrant dismissal under sovereign immunity in most cases, or a taking. The federal courts have blurred the lines between the two types of claims such that they are almost indistinguishable. Determining which type is being invoked — common law tort or constitutional taking — may be clarified considerably, and the nature of government action may be illuminated, with a test that differentiates between purposeful appropriations for public benefit, undertaken with intent or substantial certainty of the consequence to the claimant’s property, and government actions involving some diffuse risk of impact. Then, if the claims are takings rather than torts, both the nature of the government action and the parameters of the claimant’s property interest will be at issue. The ability to develop vulnerable areas may be prohibited as an inherent restriction under background principles of property law such as public nuisance and public trust. In addition, when landowners have received extensive benefits through government flood control programs that, on balance, provide more benefits than losses, there can be no viable takings claim when the floodwaters exceed the capabilities of those projects. With these clarifications, officials at all institutional levels may be willing to make more proactive decisions to operate their flood control structures to better protect vulnerable areas and human and ecological communities and to mitigate the effects of unsustainable development.
