As the flaws, injustices, and harmful effects of cash bail systems have come under the spotlight, some plaintiffs have successfully brought § 1983 claims against municipalities in federal court challenging the constitutionality of judicially promulgated bail schedules. Adherence to these bail schedules deprives detainees of individualized bail-setting hearings and results in the detention of those who are unable to pay the prescheduled bail amount....
CLR Forum
This Piece argues that Americans need to shed their anti-partyism and take a second look at parties: Political parties are the only civic associations with the capacity to organize at a scale that matters and the only intermediaries that both communicate with voters and govern. The Piece, however, advances a fundamentally different orientation to party reform—one that pushes beyond a view of parties as vehicles for funding elections, policy-demanders,...
For over a decade, a battle has been raging in the trial courts of this country over something called the “reptile theory,” often simply referred to by insiders as “the reptile.” The term comes from Reptile: The 2009 Manual of the Plaintiff’s Revolution. The book’s thesis is that the way for plaintiffs to win tort cases and secure large verdicts is to appeal to the reptilian part of jurors’ brains, which (like threatened...
What do the Justices think they’re doing? They seem to act like appeals judges, who address questions of law as needed to reach a decision—and yet also like curators, who single out only certain questions as worthy of the Supreme Court’s attention. Most of the time, the Court’s “appellate mind” and its “curator mind” are aligned because the Justices choose to hear cases where a curated question of interest is also central to the...
This Piece provides a novel framework guiding adjudication in cases of mistakes, such as unintended money transfers. We draw on Guido Calabresi’s seminal work, The Costs of Accidents, to introduce a parallel framework for mistakes and detail its operation and embodied policy considerations. We explain that mistakes, unlike accidents, can be socially harmless. When a mistake is harmless, the law acts to protect the mistaken party, thereby...
Agriculture systems are extremely susceptible to the consequences of climate change. Extreme weather events, changing temperature patterns, and invasive pests and weeds threaten our nation’s crop yields and food security. U.S. agriculture is also a leading contributor to climate change, as industrial farming and land management practices emit around a third of nationwide greenhouse gases. Certain climate-friendly agriculture practices have the...
The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.
This Piece offers...
For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no one—apart from the executive branch negotiators—knows what these deals contain....
In Kelly v. United States, the Supreme Court vacated the federal corruption convictions of the three government officials behind “Bridgegate.” In the process of doing so, the Court flagged an interesting tool that states have in their anticorruption toolkits that might’ve applied to the conduct before the Court: official misconduct statutes. These dynamic statutes are on the books in twenty-three states and territories, and another...
During and after last year’s expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identifiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision....