With Congress firmly in control of the jurisdiction, resources, and structure of the federal courts, the scope of the judiciary’s independence is limited indeed. If there is an attribute that can be considered the core of judicial independence, it is the power of the federal courts to decide cases pending before them . In a pair of recent decisions, however, the Supreme Court has called into question whether the federal judiciary possesses even this limited attribute of independence. This Article examines how the Roberts Court has blurred the line between the judicial and legislative powers by ceding to Congress the authority to direct federal courts to decide pending cases for particular parties. After identifying the thorny issues that the Court has left unsettled, this Article suggests an approach to resolving them that preserves both Congress’s role in lawmaking as well as the core of the judiciary’s independence.
This title of this Introduction to the Nevada Law Journal’s symposium on Race AND Gender AND Policing, is not a typographical or grammatical error. It conceives of race and gender and policing as intersectional in the strong sense of being co-constituted concepts wherein each element mutually constructs the meaning of each of the others in a never-ending circuit. The purported threat of crime by blacks has long been racialized so that black men are the threat, white women are the protected, white men are the protectors, and black women are left unprotected. Only when race AND gender AND policing are considered together—tied to one another not so much as points on a triangle converging towards the center, but instead coexisting on the same planar continuum—does the picture become significantly clearer. To demonstrate the utility of this approach, this article looks at a series of contemporary threats of white-on-black violence. We begin with “white-caller-crime,” in which white women like Amy Cooper use calls to 9-1-1 to threaten blacks with police violence, as in the case of Christian Cooper. We then examine how police officers use their authority to sexually assault civilians, particularly cisgender and transgender women of color, such as in the stories of Jannie Ligons and an anonymous transgender woman. We continue on to other situations that turn deadly because the now predominant proactive form of policing leads to unnecessary encounters with blacks that sometimes turn violent, such as in the stories of Sandra Bland and Elijah McClain. Our analysis of the cycle of policing violence then turns to encounters where the police use overwhelming force to enter black homes, and black women are killed as collateral damage, as was the case with Breonna Taylor and Charleena Lyles. Only then do we finally assess stories like George Floyd’s, where black men’s assumed dangerousness is used to justify subduing them with deadly force. We note, however, how this type of police violence has private parallels, such as in the case of the stalking and killing of Ahmaud Arbery, again based on assumed dangerousness of black men. In this way, white private actors feel empowered to defend their property with deadly force and are shielded from prosecution in much the same way police officers are, as in the initial lack of justice in the case of Black Lives Matter protester James Scurlock. Our understanding of these incidents does not end there, though, as the aforementioned white-caller crime is another means of private violence against blacks, and it also reinitiates this cycle of policing violence. We say all of this to demonstrate that policing’s involvement in the maintenance of race-gender hierarchy is larger in scope than has traditionally been portrayed. Our case studies show that policing should be understood as anti-black, but anti-blackness should itself be understood as co-constituted with the meanings of whiteness in general and white womanhood in particular. Harkening back to the Kerner Commission, we call for a new perspective on race and gender and policing. We conclude by proudly describing the nine essays in this symposium, which both critique the present and provide an outline for a better future.
Every living being is doomed to decay and die and decay some more. Death is inevitable, and the disposal of our dead is a fundamental global activity with the potential to have significant environmental impact. In the United States, the environmental toxicity of “traditional” modern burial is stark. A cosmeticized body is pumped with three gallons of embalming fluid (containing chemicals such as formaldehyde) that eventually leaches through metal and wood and into the ground. An estimated 5.3 million gallons of embalming chemicals are buried annually in what are essentially luxury landfill-slash-golf-courses, with landscaping and grass to maintain and mow, in coffins that are typically constructed of nonbiodegradable chipboard. And while cremation is a more environmentally friendly alternative, incineration cremation falls short of being labeled “green.” Fire-based cremation utilizes significant resources and energy, attributable to the substantial quantity of fossil fuel required to burn human remains at 1,562° F (850° C) to reduce a corpse to ash. Pollutants are generated in doing so, including an average of 250,000 tons per year of carbon emissions and an estimated 320 to 6,000 pounds of mercury (from incineration of dental fillings) per year. This tradition-steeped industry has projected domestic annual revenues of $68 billion (by 2023) and, interestingly, the industry has slowly started to “go green.” Changing the way in which one is buried will not solve the problem of climate change, but it does respect the notion that one’s last act on earth should not be to harm it. Industry norms are on the brink of disruption: the alt-death or death positive movement seeks to infuse the human experience back into death; there is capital investment into new innovative death service technologies, e.g. Funeralocity, WeCroak; and green death care tech startups are dramatically broadening available options for reintegrating human remains back into the environment in an eco-friendly manner. Unfortunately, a myriad of market failures and obstacles are impeding that disruption. This Article explores our modern disconnection from death, the transitioning of human remains in an environmentally friendly manner, the importance of pre-need or pre-death planning and prepayment to protect the grieving consumer, and the way in which tax incentives may be utilized to weave these ideas together in a cohesive plan for a green tax credit. A Pigouvian subsidy is proposed in the form of a refundable tax credit for qualified expenditures related to the nonrefundable prepayment of expenses arising from “sustainable disposition or transition of human remains.”
Immigration enforcement agencies are among the most racially diverse in federal law enforcement. More than half of all women holding law enforcement positions within immigration agencies are minorities, though the overall number of female agents is relatively small. This Essay focuses on women of color in immigration enforcement. It begins with a necessary primer on immigration enforcement. Next, it traces key developments that led to the diversification of immigration enforcement, including analysis of never before published data about the racial and gender diversity of immigration agents. Then, it considers the unique benefits of hiring women of color as enforcement agents and notes barriers to the recruitment and retention of women of color by immigration enforcement agencies. This Essay is largely descriptive, offering a picture of immigration enforcement and the role that women of color play in it. My hope is that this Essay will serve as a jumping-off point for empirical research regarding a before-now understudied segment of the immigration enforcement workforce.
How likely is it that the average American will become an inventor? With a novel idea and hard work, it should be a possibility for all Americans. The data suggests otherwise. Most patents are obtained by inventors that work for large corporations. Small businesses, solo inventors, women, and minorities lag behind their counterparts in patenting. A common explanation for this phenomenon is that it is a “pipeline” issue. However, evidence suggests that the patent system is not accessible to underrepresented innovators for more problematic reasons. At almost the same time as information about the concentration of patenting activity has garnered attention, the U.S. Patent and Trademark Office (“USPTO”) has become more vocal about its interest in Artificial Intelligence (“AI”). AI will transform how the USPTO examines patent applications. It may also transform how people invent. What has been absent from the conversation about AI and patenting is the negative effect AI has had when introduced in other social systems. For example, AI models can exhibit bias that concentrates power around incumbents. In addition, leaders overestimate the ability of AI models to solve human issues. This article refers to these problems collectively as “AI enthusiasm.” This Article argues that AI enthusiasm threatens to make the patent system less accessible for underrepresented innovators. In response, this article presents a framework for improving access to the patent system given the emergence of AU. First, limits must be placed on AI-assisted examination informed by best practices that combat AI bias. Second, the USPTO should grant patents to inventions that are created with the assistance of AI only if the AI involved adheres to a set of best practices that reduce the chance of biased outcomes. Finally, true access involves removing obstacles to the innovation culture that has historically been closed to underrepresented inventors. Thus, AI tools should be deployed to assist underrepresented innovators in the patenting process. Collectively, these measures may provide U.S. innovators from all walks of life the opportunity to call themselves an inventor.
Victim compensation funds (“VCF”) exist to help victims and their families during a traumatic time of crisis. VCFs cover funeral expenses, medical expenses, and mental health treatment at a critical time. Yet to be eligible for victim compensation funds, the victim often must provide a police report that identifies the assailant as the perpetrator and the harmed party as the victim. When the assailant is a police officer, then victims don’t have police reports that identify them as victims. Instead, law enforcement can identify these witnesses and subjects of violence as contributory in order to protect police officers from liability. Victim compensation funds should not automatically disqualify victims of police shootings and their families. Legislatures and prosecutors can amend the VCF requirements to allow victims of police violence to apply and be considered for funds. A legally innocent civilian who has been shot by the government is a victim, particularly in a deadly shooting where the government imposed the sentence of death without any process. This essay provides legal support for extending consideration for VCFs to victims of police use of force. VCFs are capped in amount, and thus are more tangibly helpful for non-deadly use of force compensation where the medical and concomitant bills could be covered by $50,000 or less. VCFs are not a solution to police violence, but they are a pathway to making victims whole who are most likely to be abused without recourse.
The burden of proof is an essential mechanism to ensure that cases are decided fairly. Our existing form of proof burdens, unfortunately, has a number of surprising downsides. Conventional burdens of proof are mathematically discontinuous. This means that a tiny shift in a jury’s confidence in guilt can lead to a dramatic change in consequences for the parties in a case. This article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, and concludes that adopting the right kind of continuous burden would help make our justice system fairer, more equitable, and more effective at deterring wrongdoing. Existing scholarship has analyzed one type of continuous burden of proof, the linear burden, which scales the amount of damages in direct proportion to a jury’s confidence level that the defendant has engaged in the charged offense. Unfortunately, the choice between linear continuous burdens and traditional burdens involves a hard-to-reconcile tradeoff between the values of deterring wrongdoing and reducing the expected rate of errors at trial. I offer two ways in which we might move beyond this apparent stalemate. First, I enumerate previously unexplored advantages of continuous burdens, including their ability to minimize the impacts of biases and other forms of structural unfairness at trial. Second, I offer the first exploration of the logistic continuous burden of proof. This novel means of deciding cases strikes a better balance between deterrence and expected errors than either a traditional burden or a linear continuous burden does. After making the case for the adoption of a logistic continuous burden of proof, this article will consider some challenges that would stand in its way and some reasonable steps we could take towards the continuous approach.
IRAC is not the arbiter of legal analysis. In fairness, it never claimed to be. Yet despite IRAC’s confession as only a prototype of analytical structure incapable of providing creative depth—a sentiment that many within the legal academy have readily acknowledged for decades—its dominance still persists sustained by a presumption of innocence. This presumption harms novice legal writers who do not see IRAC’s shallowness, and instead blindly follow its siren of seductive simplicity as a norm for the process of legal analysis. Critiques of IRAC are not novel, but my aim is not to challenge IRAC as a structural framework, rather, I cast IRAC as an overbearing character engendering an identity crisis in legal writing and stunted professional growth and cultural awareness in law students. Situating this discussion in Law & Literature discourse, I use the musical Wicked—the untold story of the Witches of Oz—as a contemporary framework to juxtapose identity performance with legal writing. My thesis is twofold: First, comparing IRAC to Glinda the Good Witch, I suggest that IRAC is a rigid, objective, and neutral approach to legal analysis, an approach that mimics white normativity. Thus, I question its ability to serve as an entry point for a more complex analysis or platform for Other experiences. Second, comparing Analytical Frameworks to the Wicked Witch of the West, I suggest the richness of such frameworks are truly the transformative process of legal analysis, serving not as an impediment to students’ authentic identity as lawyers, but as further development of it. Heralded as a cultural phenomenon, Wicked transformed the way we view the Wizard of Oz. Wicked not only narrated the Wicked Witch’s identity from her perspective, it also provided a revealing reflection on the Good Witch’s identity—her privileged life and superficial rise to popularity. In contrast to the tension that exists in replicating rigid paradigms, such as IRAC, this literary approach demonstrates the richness of legal analysis to convey the human experience and make the law accessible, particularly for those who exist at the margins. In the end, the audience loved Wicked—not because it outshined the Wizard of Oz—but because Broadway finally shared with the world the identity formation of the “Wicked Witch of the West.” Her name is Elphaba, and she’s not so wicked.
Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaces in the legal literature regarding autonomous businesses. This Article seeks to fill the gap in the current discussion by creating a taxonomy of autonomous businesses and using that taxonomy to demonstrate that automation, standing alone, is not what makes autonomous businesses exceptional. Rather, the capacity of autonomous businesses to make radical governance changes more prevalent in the market pushes the boundaries of current choice of entity and governance paradigms while also illuminating low-technology functional equivalents that may offer more traditional businesses a path to governance reform. To make these claims, this Article begins in Section I by briefly introducing the two emerging technologies that enable business automation. Section II reviews the existing literature and argues that by focusing on only one specific segment of the current autonomous business landscape, the literature misses key opportunities to evolve business law. Section III builds a map of existing autonomous businesses, demonstrating the differences among them and explaining them as a function of design trade-offs. Section III then uses that map to build a taxonomy of autonomous businesses and offers a framework for considering the broader impacts of autonomous businesses on law. Section IV examines ways that autonomous business reality may incentivize reforms in traditional corporations while simultaneously emphasizing the need for continued research and innovation in choice of business entity, organizational governance, and regulatory compliance.
Ride sharing has disrupted the transportation-for-hire industry, breaking down barriers to entry that have protected incumbents in the industry for decades. The disruption has led to calls for increased regulation, along with criticisms about the effect of innovation on consumer safety, market stability, rule of law, and others. And yet, that disruption has also led to tremendous benefits to consumers, as they are freed from a regulatory regime that limited their transportation choices and forced them to pay higher prices for lower quality service. The same type of disruptive innovation is upon us in almost every area of our economy, and how we deal with it will determine whether the law will finally free consumers from the grasp of entrenched and privileged incumbents, or whether the combined forces of those incumbents and their erstwhile allies in academia will lead to a regulatory retrenchment. The article concludes that opposition to innovation rests on a Galbraithian foundation that holds a dim view of human nature, and that greater reliance on Smithian assumptions would serve us better as we decide how to deal with innovation and its disruption. The article also concludes that innovation is inevitable; if the law seeks to inhibit it, it merely guarantees a greater disruption when it finally arrives.
Research in the field of behavioral ethics finds that much unethical behavior is not the result of conscious amorality. Rather, cognitive and motivational biases enable and even encourage people who consider themselves to be pro-social to act badly without ever recognizing the shortcomings of their behavior. This Article, delivered as the annual Chris Beecroft, Jr. Memorial Lecture on Dispute Resolution at the UNLV Boyd School of Law, explores how the findings of behavioral ethics can help to better understand, predict, and potentially combat unethical behavior in legal negotiation. Its admittedly pessimistic conclusion is that legal negotiation is an activity that is likely to be rife with behavior that is unethical, or at least presses hard against ethical boundaries. The Article summarizes the core findings of behavioral ethics research, explains why this research suggests that deceptive behavior will be common in negotiation, argues that the agency role played by lawyers in legal negotiation likely also encourages unethical behavior, and, finally, propose steps that lawmakers or negotiators themselves might take to reduce the amount of deceptive behavior in legal negotiation.
The secrecy surrounding the algorithms that play a central role in American life today is proving to have alarming effects. Judges and juries are convicting defendants based on secret evidence. Major advertisers like Facebook are discriminating against minorities seeking housing. And Russians may very well be hacking our voting machines to change election outcomes. The algorithm secrecy underlying these results obscures whether such legal outcomes are actually accurate and fair or whether they were based on faulty evidence, affected by bias, or manipulated by outside influences. These are just a handful of the public-interest perils of algorithm secrecy. This Article explains that the pervasive secrecy surrounding algorithms is not entirely by accident. The Supreme Court’s recent overhaul of intellectual property (IP) law has driven algorithm developers toward secrecy. By limiting patent protection for software, the Court’s new IP regime pushes developers away from the required disclosure of patent law and toward the obscurity of trade secret law. In doing so, the new regime neglects to take into account the many negative effects that this heightened secrecy has on the public interest. Accuracy, fairness, and good policy require a more careful consideration of the tradeoffs between secrecy and transparency. This includes not only exploring how to minimize these swelling public-interest concerns but also reexamining the Court’s new IP rules with these negative effects in mind.
This article presents a survey of contemporary case law to demonstrate the incoherence of, and in some contexts the harm being done by, consideration doctrine, and to propose a consideration-free contracts syllabus. A brief review of the theoretical landscape is followed by a review of the problems that consideration and its corollaries purport to solve, the different possible rules for each problem and the present state of the law, and a comprehensive survey of recent court decisions applying and misapplying consideration doctrine and its corollaries. Finally, I propose a consideration-free syllabus for teaching contracts law.
The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions of employing algorithms for access to justice initiatives represent an under-fit in relation to what algorithms could provide. A lack of precision about algorithms results in blunt protections of professional integrity leaving little room for the potential benefits of algorithmic tools. In other words, this incongruence persists because of imprecise understandings and unrealistic characterizations of the algorithmic technologies and how they fit within the broader technology of law itself. This Article provides an initial set of tools for empowering lawyers with a better understanding of, and critical engagement with, algorithms. With the goal of encouraging a more nuanced discussion around the ethical dimensions of using algorithms in legal technology—a discussion that better fits technological reality—the Article argues for lawyers and non-technologists to shift away from evaluating legal technology through a lens of mere algorithms—as though they can be evaluated outside of a specific context—to a focus on understanding algorithmic systems as technology created, manipulated, and used in a particular context. To make this argument, this Article first reviews the current use of algorithms in legal settings, both criminal and civil, reviewing the related literature and regulatory responses. This Article then uses the shortcomings of legal technology lamented by the current literature and the related regulatory responses to demonstrate the importance of shifting our collective paradigm from a consideration of law and algorithms to law and algorithmic systems. Finally, this Article offers a framework for use in assessing algorithmic systems and applies the framework to algorithmic systems employed in the legal context to demonstrate its usefulness in accurately separating true tensions from those that merely reverberate through the hype cycle. In using the framework to reveal areas at the intersection of law and algorithms truly most ripe for progress, this Article concludes with a call to action for more careful design of both legal systems and algorithmic ones.
