American colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply … rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, and in real time.” Even well-meaning and diligent university faculty and staff members cannot serve as competent hearing officers under the revised regulations, at least not without robust training that campus officials will have trouble providing. Under the prior regime, faculty and staff hearing officers often required that parties submit written questions, which the officer would then consider asking of witnesses. Further, many universities prohibited parties’ advisors from speaking at hearings, other than by whispering to their clients, who might then propose a question suggested by counsel. These practices are forbidden under the revised regulation. A marketing or biology professor who muddled through under the old system—carefully considering questions scribbled by college students—will encounter an entirely new challenge when asked to rule in real time upon the propriety of questions asked by skilled lawyers. Necessary training would be expensive. This Article proposes that colleges and universities solve this problem by hiring external hearing officers. At the same time, institutions can retain autonomy over internal discipline decisions by using faculty and staff as jurors who decide the merits of a case after a trained professional has presided at a hearing.

Surveys taken since 2015 reveal that Americans exhibit stark partisan divisions in their opinions about colleges and universities, with recent shifts in attitudes driving changes to higher education law. In recent years, Democrats have become slightly more positive about higher education. Concurrently, Republicans have become extremely more negative, and a majority of Republicans now tells pollsters that colleges and universities have an overall negative effect on the country. Particularly in legislative chambers controlled by Republicans, public and elite dissatisfaction with higher education has led to legal interventions into the governance of universities, with new laws related to faculty tenure, the treatment of undocumented immigrant students, the use of state funds for disfavored programs, the composition of university governing boards, and campus speech, among other topics. At the federal level, during the Obama Administration advocates persuaded the Department of Education to demand sweeping changes to how institutions adjudicate allegations of sexual harassment and sexual assault. At the behest of different advocates and critics, Trump Administration officials have rescinded the prior guidance and are in the process of enacting new regulations on the same campus processes. Higher education has real problems—such as skyrocketing tuition—which inspire real anger. Right-wing media outlets amplify this discontent, and politicians respond to voter outrage with hearings and legislation, deepening the lack of confidence. These phenomena are likely to endure and even to increase in intensity. Accordingly, higher education law has entered a new era in which college and university leaders must anticipate growing legislative intervention into day-to-day campus operations. Remaining true to institutional values in a newly difficult legal environment will challenge higher education administrators across the country, both at private and at public institutions. In particular, leaders of public institutions will face increasingly daunting tasks in states with conservative electorates.

Note: A newer version of this book, called “Criminal Procedure: A Free Law School Casebook,” was published by CALI in summer 2020. Free downloads are available at https://www.cali.org/books/criminal-procedure-trachtenberg-alexander Show Me Criminal Procedure is a criminal procedure casebook available at no charge under a Creative Commons license. An open educational resources (OER) book funded by grants from the University of Missouri System, the book was written by two professors at the University of Missouri School of Law. Ben Trachtenberg teaches criminal procedure, evidence, and professional responsibility. Anne Alexander is director of the law school’s legal research and writing program. The book is designed for the “investigations” criminal procedure class commonly taught at American law schools. It focuses on the Fourth, Fifth, and Sixth Amendments to the Constitution of the United States. Fourth Amendment topics include definitions of “search” and “seizure,” probable cause, warrants, exceptions to the warrant requirement (e.g., plain view, consent, automobiles), stop & frisk, and arrests. Moving to interrogations, the book covers due process and the voluntariness requirement, the Miranda Rule, and the Massiah doctrine. Next the book covers the exclusionary rule, including doctrines about standing and exceptions. Other chapters cover the right to counsel (including ineffective assistance and self-representation), witness identifications, and—briefly—electronic surveillance and the “war on terror.” Like many criminal procedure casebooks, Show Me Criminal Procedure takes most of its words from Supreme Court opinions interpreting the Fourth, Fifth, and Sixth Amendments. When possible, it links to sources that it cites, such as court opinions and scholarly commentaries. Note: Faculty considering assigning the book to students should feel free to contact Professor Trachtenberg about teaching materials.

In 2015, student protestors at more than eighty American universities issued administrators demands related to racial justice. Even readers intensely interested in both civil rights and higher education policy could name few of these institutions. Yet somehow the University of Missouri (“Mizzou”)—along with Yale and a few other universities—became nationally famous as a hotbed of racial unrest. At most of these eighty universities, presidents did not resign, enrollment did not plummet by thousands of students, nor did relations with state politicians deteriorate terribly. In the tradition of legal narrative and storytelling, this Article explores how the University of Missouri managed to fare so badly after students began protesting during the fall of 2015. It reviews the details and context of the Missouri protests and then presents a case study of crisis management and conflict resolution gone awry. Applying observations about higher education policy and administration to the phenomenon of student protests—particularly those related to race—the Article identifies potential pitfalls for university administrators and student activists. It then explains how specific actions taken (and, in some cases, not taken) by University of Missouri leaders increased the risk that student protests would lead to long term institutional damage. Finally, the Article suggests lessons that leaders at other universities—including trustees and administrators, as well as students and faculty—can take from Mizzou’s experiences. Contrary to popular opinion, Mizzou did not have a uniquely bad racial climate, nor did its students behave in inexplicable ways. Instead, the challenges faced in Missouri will present themselves elsewhere, and leaders who have taken the time to learn from Mizzou’s mistakes will fare better than those who choose to ignore this history.

This Article questions whether private colleges and universities should act as though the First Amendment applies to them in the same way it constrains the policy of public colleges and universities. Specifically, the Article examines the common suggestion—by laypersons, lawyers, and scholars alike—that private universities ought to tolerate offensive, hateful, bigoted speech because the values animating First Amendment jurisprudence are similar to those guiding the decisions of good universities committed to free inquiry and the open exchange of ideas. It then notes that this suggestion, while commonly made, is rarely defended with much rigor or vigor. The Article next marshals arguments in opposition to the suggestion—including evidence that some of the sort of speech protected by the First Amendment at public universities may well hinder free inquiry and inhibit the open exchange of ideas. The Article concludes with the modest claim that if policymakers and scholars want private universities to voluntarily assume onerous free speech obligations imposed by the Constitution on public universities, they should at least consider whether the benefits of such obligations truly outweigh the harms.

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement — launched with the best of intentions in response to real problems — almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, which prevents evaluation of possible disparate racial impact in higher education. Further, several aspects of the university disciplinary apparatus — including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures — increase the risk that minority students will suffer disproportionate suspensions and other punishment. This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men — or, instead, even now provide inadequate protection for college women — few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar racial biases. This Article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act of 1964 to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.

Among the more important decisions a law teacher makes when preparing a new course is what materials to assign. Criminal procedure teachers are spoiled for choice, with legal publishers offering several options written by teams of renowned scholars. This Article considers how a teacher might choose from the myriad options available and suggests two potentially overlooked criteria: weight and price.The Article then explores the possibility of providing criminal procedure casebooks to law students for much less money than is currently charged, taking advantage of the public domain status of Supreme Court opinions, which form the backbone of most criminal procedure syllabi. The Article suggests that law schools could encourage faculty to produce casebooks that would be made available to our students for the cost of printing, with electronic versions available gratis (that is, “free” as in “free beer”).

This Article replies briefly to the robust response that Professor Frank O. Bowman III submitted in answer to my earlier contribution to the Missouri Law Review’s symposium issue concerning events in Ferguson, Missouri. Without denying the technical accuracy of a point Professor Bowman raises concerning grand jury procedures (distinguishing between a “true bill” and a valid indictment), I dispute whether the distinction can support all of the weight placed upon it. I also dispute an empirical claim made by Professor Bowman concerning whether grand jury deliberations in sensational cases boost public confidence in the justice system and whether dispensing with the ritual — only in cases where the prosecutor believes at the close of evidence that no indictment should be brought — would create risks to public safety. Finally, I take a moment to clarify what I did — and what I did not — argue in my earlier Article.

This Essay argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Essay uses the example of St. Louis County Prosecutor Robert P. McCulloch – who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown’s killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include (1) the exercise wastes the time of citizens forced to serve on grand juries; (2) the deliberations might, despite the prosecutor’s wishes, result in indictments contrary to the interests of justice; and (3) by “passing the buck” to the grand jury, the prosecutor evades accountability for his own decisions.

In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold that Shapes Hearsay Law,” 66 Fla. L. Rev. 433 (2014). Professor Friedman vigorously defended the concept of “testimonial” hearsay set forth in Crawford and argued further that for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible.This essay, published along with that of Professor Friedman, continues the debate. After briefly revisiting the criticism of Crawford’s historical basis - and noting the questionable “originalist” support for the Confrontation Clause doctrine - this essay argues that the Court’s Sixth Amendment jurisprudence should be judged by its works. Because a majority of Justices has been unable to present a coherent definition of “testimonial,” evaluating the Crawford decision remains difficult a decade after its issuance. Nonetheless, it is becoming clear that a sensible Confrontation Clause doctrine will concern itself with the reliability of evidence admitted against criminal defendants. The success of subsequent efforts to define the right of a defendant “to be confronted with the witnesses against him” will depend, at least in part, on the answer to these questions: Does the doctrine admit reliable evidence? Does it exclude unreliable evidence?

Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics — especially those concerning the employment outcomes of law graduates — in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit.This article exposes how pitches aimed at prospective students, including the seemingly straightforward recitation of statistics on law school websites, still paint an unduly rosy picture of the legal employment market. Focusing on Rule 8.4(c) of the Model Rules of Professional Conduct, the article explains that law school officials have exposed themselves to professional discipline, which may offer a solution to the pervasive problem of misleading law school marketing.

Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation of an old hearsay exception cannot plausibly be described as “firmly rooted” in American law, nor does the hearsay included in the new exception bear “indicia of reliability,” coventurer hearsay would have been inadmissible at criminal trials under pre-Crawford Sixth Amendment jurisprudence. The overwhelming majority of coventurer statements, however, are not “testimonial,” meaning that current Confrontation Clause law does not prohibit their use against criminal defendants. Accordingly, coventurer hearsay demonstrates that defendants suffer prejudice from the Court’s reinterpretation of the Sixth Amendment. After reviewing evidence that the Crawford majority misinterpreted the historical background of the Confrontation Clause, the Article argues that the Court should reexamine whether the Confrontation Clause, or perhaps the Due Process Clauses of the Fifth and Fourteenth Amendments, should be read to prohibit the admission of dangerously unreliable hearsay against criminal defendants, even if such hearsay is “nontestimonial.” The case of the Holy Land Foundation - in which the United States government closed America’s largest Muslim charity and convicted five leaders of funneling money to Hamas - provides a concrete example of coventurer hearsay run amok. The prosecution case relied heavily on “joint venture” hearsay, unreliable out-of-court statements admissible only pursuant to a new interpretation of the coconspirator exception, a hearsay exception likely to have been found unconstitutional under the Confrontation Clause jurisprudence upended by Crawford. The result exemplifies the injustice made possible by recent case law and provides a new challenge to the testimonial theory of confrontation law.

Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was expected to save lives, the number of lives saved could be multiplied by the VSL to monetize the benefits. Because, however, lives saved in the future were given the same nominal value as lives saved in the present, the real value of future lives was substantially eroded by discounting to present value, generally at annual rates of 3 and 7 percent. In other words, if a life saved today is worth $8 million, a life saved in ten or twenty years would be worth far less. A discount rate of 7 percent erodes half the value of a life expected to be saved in 2022 and three-quarters of one expected to be saved in 2032. This process hinders the regulation of slow-acting perils, such as workplace carcinogens and global climate change.Now the EPA and the DOT have begun inflating VSLs when calculating the benefits of regulations. Before subjecting lifesaving benefits to the same discounting applied to other costs and benefits, the agencies adjust the values upward to reflect the expected higher income (and associated willingness to pay to avoid risks of harm) enjoyed by future persons. This seemingly minor procedural change can radically alter the expected benefits of major regulations, and the regulated community will likely oppose the agencies’ efforts to more accurately calculate future benefits. Observers of federal regulation should track this battle carefully and contact other federal agencies as they decide whether to adopt the “VSL inflation” procedure.

Underregulation kills. When a sensible and effective rule is proposed but then not implemented, society loses whatever benefits the regulation would have provided. When those benefits take the form of saved lives — if, for example, the rule would have kept a carcinogen out of the workplace — failing to enact and enforce a regulation means people die. Unfortunately, federal agencies in the United States systematically undercount the benefits of rulemaking, causing regulators to forsake the implementation of lifesaving measures that would have been enacted were benefits estimated more accurately. The result is American lives lost, every year.This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that a strict economic evaluation of future lives would discount the relatively impoverished lives of present citizens compared to the projected luxurious and healthy existence of our expected descendents, just the opposite of what happens in agency practice.

This Article presents two new arguments against “discounting” future human lives during cost-benefit analysis, arguing that even absent ethical objections to the disparate treatment of present and future humanity, the economic calculations of cost-benefit analysis itself - if properly calculated - counsel against discounting lives at anything close to current rates. In other words, even if society sets aside all concerns with the discounting of future generations in principle, current discounting of future human lives cannot be justified even on the discounters’ own terms. First, because cost-benefit analysis has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Second, cost-benefit analysis ignores the trend of improved material conditions in developed countries. As time advances, residents of rich countries tend to live better and spend more, meaning that a strict economic monetization of future persons values the lives of our expected descendents above those of present citizens. These two factors justify “inflation” of future lives that would offset, perhaps completely, the discount rate used for human life. Until regulators correct their method of discounting the benefits of saving human lives in the future, the United States will continue to suffer the fatal costs of underregulation, and agencies will remain in violation of legal requirements to maximize net benefits.

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this Article, a survey of thousands of court decisions, including the earliest English and American cases concerning the Exception as well as approximately 2500 federal court opinions discussing the Exception since its federal codification in 1975, makes clear that a “conspiracy” under the Exception must involve wrongful acts. First, courts and commentators have for centuries described the Exception as concerning illegal or illicit conduct. Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence. Third, such revisionism could also violate the Confrontation Clause of the Sixth Amendment, which has been interpreted to prohibit admission of “testimonial” hearsay in criminal trials. To adhere to the historical definition of the Coconspirator Exception to the Hearsay Rule, prosecutors should stop arguing that the conspiracy joined by the declarant and defendant may include purely lawful conduct, and courts encountering such arguments should reject them, lest they find themselves conducting new trials after the rights of convicted defendants find vindication on appeal. Civil litigants should also resist the revisionist interpretation of the Exception, which threatens immense and unnecessary discovery burdens.

As the academy's focus has turned to sentencing in the wake of Blakely v. Washington and United States v. Booker, most commentators have continued their benign neglect of actual sentencing practices as they occur in state courts, not to mention whether and how such policies are effective in achieving the goals of criminal justice. This Note examines trends in state sentencing policies and prison populations from the perspective of a would-be state reformer hoping to decrease her state's prison budget. Economic pressures, efficiency arguments, and social justice claims have combined to cause some states to desire lower prison populations, but few empirical studies exist of how states actually go about reducing their prison costs. This Note begins with an examination of twenty years of prison admissions data, tracking the trends of new admissions into state prison systems. After identifying outlier states - those states whose low admissions defied national and regional trends - the Note presents three state case studies evaluating the policy choices contributing to the lower admissions. Next, recommendations are made for would-be reformers based on these results. In addition to incarceration alternatives, special focus is placed on North Carolina's fiscal note program, which, coupled with computer modeling of expected prison populations, has helped the state conduct informed debate about criminal sentencing. In the wake of sentencing reforms, the state has moved from having the nation's top incarceration rate to a place in the middle of the pack, an impressive result given the continued priority of tough sentences for violent offenders.