The harmless error doctrine is beset with problems, both theoretical and practical. In Harmless Error and Substantial Rights, recently published in the Harvard Law Review, Professor Daniel Epps proposes a reconceptualization of constitutional criminal procedure rights that is designed to address these problems. Epps argues that those constitutional criminal procedure rights that are capable of being violated by prosecutors...
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Bribery and corruption violations are often hard to detect. For this reason, the U.S. enforcement authorities typically struggle to produce the right incentives for corporations to cooperate with public enforcement efforts in anticorruption cases. In November 2017, following the successful implementation of an eighteen-month pilot program, the Trump Administration announced its revised Foreign Corrupt Practices Act (FCPA) Corporate Enforcement...
Until recently, the Supreme Court interpreted the Federal Power Act (FPA) to draw an impermeable boundary between the jurisdiction of the Federal Energy Regulatory Commission (FERC) and those of state public utility commissions. But the Court’s recent decisions in FERC v. Electric Power Supply Association (EPSA) and Hughes v. Talen Energy Marketing, LLC appear to relax the formalistic test traditionally used to resolve...
The American criminal justice system is a system of pleas. Few who know it well think it is working. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law—the two most studied bodies of law in the criminal justice system—neither...
Contemporary scholarship and jurisprudence concerning the Constitution’s separation of powers is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation of powers system as abiding in a stable equilibrium or as enthralled by transformative...
This Note assesses First Amendment freedom of speech claims with regard to online civil rights testing. Transactions that have conventionally occurred in person are now more often completed online, and providers transacting online have been increasingly using algorithms that synthesize users’ data. While these algorithms are helpful tools, they may also be yielding discriminatory results, whether intentionally or unintentionally.
In...
The opioid crisis in the United States has affected and continues to affect the lives of hundreds of thousands of people. Driven by opioids and fentanyl, overdose is a leading cause of death. It has claimed more lives than guns, breast cancer, and car accidents. While some potential solutions have sought to strengthen criminal laws and provide harsher sanctions to drug dealers to combat drug abuse, harm reduction practices continue to best address...
Decarbonization is the process of converting our economy from one that runs predominantly on energy derived from fossil fuels to one that runs almost exclusively on clean, carbon-free energy. If pursued on the scale that experts believe necessary to prevent dangerous climate change, the infrastructure changes required to decarbonize the United States will have significant social and cultural implications. States aggressively pursuing decarbonization...
The SEC’s recent—and controversial—choice to make more frequent use of internal enforcement actions has raised several questions. Some have asked whether the SEC has attempted to advantage itself by prosecuting in-house; others have asked whether the SEC’s internal enforcement scheme is unconstitutional. This Note asks a largely overlooked threshold question: Do—and just as importantly, should—federal district courts have parallel...
The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state...