Anticipating a New Modern Skidmore Standard

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that at first blush may not seem entirely square with some of the assumptions and reasoning in Loper Bright. The purpose of this Essay is to explore the pre‑Loper Bright status quo of Skidmore review and anticipate some of the questions about Skidmore that will inevitably arise as courts apply it in future cases

Defending Due Process : Why Fairness Matters in a Polarized World

We all feel unfairness deeply when treated in rash ways. We expect, and the law requires, government officials to take fairness seriously, giving us notice and an opportunity to be heard before taking our rights away. That is why the U.S. Constitution commands, twice, that no one shall be deprived of life, liberty, or property without due process of law. Yet, in overheated debates, people argue that others do not deserve any presumption of innocence. In courtrooms and colleges, police stations and jails, restaurants and libraries, print and online, the democratic value of due process is up for grabs. Why is due process under so much pressure? Brandon Garrett exposes widening fault lines. One division lies within our own attitudes, and he explores why we are tempted to put desired outcomes before fair process. Another lies in government, as judges adopt toothless due process rules. People are trapped in debt for unpaid traffic fines; sheriffs seize and forfeit belongings; algorithms suspend teachers\u27 employment; officials use flawed data to cancel healthcare; and magistrates order arrestees to be jailed because they cannot pay cash bail. Meanwhile, the rise of AI threatens what remains of due process with black-box technology. To fight against such unfairness, lawyers try to challenge unjust systems, researchers demonstrate why such processes are so counterproductive, and lawmakers try to enact new protections. Common ground matters now more than ever to mend political polarization, cool simmering distrust of government, prevent injudicious errors, and safeguard constitutional rights. A revival of due process is long overdue.https://scholarship.law.duke.edu/faculty_books/1037/thumbnail.jp

Automating International Human Rights Adjudication

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of damages. In contrast, we reject the use of algorithms or artificial intelligence (“AI”) to predict whether a state has violated a human rights treaty. In between these polar categories we discuss semi-automated programs that cluster similar cases together, summarize and translate key texts, and recommend relevant precedents. We weigh the benefits of introducing these tools to improve international human rights adjudication—which include greater speed and efficiency in processing and sorting cases, identifying patterns in jurisprudence, and enabling judges and staff to focus on more complex responsibilities—against two types of cognitive biases—biases inherent in the datasets on which ADM is trained and biases arising from interactions between humans and machines. We also introduce a framework for enhancing the accountability that mitigates the potential harms caused by ADM technologies

Playing to Win: The Use of Export Controls to Address Non-military Strategic Competition

Technology and national security have been intimately related throughout American history. Over the past eighty-five years, the United States has increasingly made use of export controls to prevent adversarial countries from using the fruits of its technological advancement to strengthen their militaries and harm American interests. Today, strategic competition with the People’s Republic of China involves a myriad of technologies which present risks outside of, as well as within, the military context. Chinese exports of technologies, including artificial intelligence, quantum computing, and 5G communications, can promote the country’s authoritarian model abroad, enable economic coercion, and help to enrich the regime. The Belt and Road and “Made in China 2025” initiatives illustrate China’s use of novel technologies to further its global ambitions. Export controls may help to confront these threats. This note asks whether the Bureau of Industry and Security (a government body tasked with implementing export controls) can regulate exports of novel technologies for purposes of non-military strategic competition. Through examination of the statutes authorizing export controls and of the deference traditionally afforded to the Executive in administrative and foreign affairs matters, this note concludes that such export controls are authorized

To Infinity and Beyond (And Beyond): The Legal and Ethical Imperative for Rocket Reusability

Although the Space Shuttle’s first flight was in the 1980s, reusable rocket technology did not achieve mainstream viability until SpaceX’s reusable Falcon 9 rocket revolutionized access to space. This note argues that transitioning to reusable rocket technology is not only a practical and economic advancement, but also a legal and ethical imperative. By analyzing reusable rockets through the “due regard” framework of the Outer Space Treaty, this note demonstrates how reusable rockets mitigate space debris, expand access to space, and can reduce environmental harm. Additionally, reusable rockets address critical ethical concerns by lowering barriers to space exploration, allowing the benefits of space exploration to be shared by more nations, and conserving resources which can be redirected to other pressing needs on Earth. As the global launch cadence continues to rise, widespread adoption of reusable rocket technology is essential to ensuring the long-term sustainability of space exploration while fulfilling international legal obligations and inherent ethical responsibilities

Fair Notice Is a Sociopolitical Choice

This Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice? The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history. From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands-off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice. Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory

Justice on the Home Front: Domestic Prosecution of Foreign Combatants During Wartime

Russia\u27s 2022 full-scale invasion of Ukraine produced a shock to the world order. The conflict has led to immense suffering for the Ukrainian people, many of whom have fled their homes or are directly involved in the fighting. In some instances, the use of improper tactics by both sides exacerbates the devastation, even amounting to war crimes. Although the war rages on, justice efforts have already begun. International tribunals and foreign countries’ domestic courts have initiated investigations into alleged violations of international law and prosecutions of the perpetrators. The most significant effort, though, has been within Ukraine’s own courts. These domestic war-crimes trials of Russian combatants are occurring on an unprecedented scale despite the difficulty of ensuring fair trials during wartime. This Note examines Ukrainian war-crimes prosecutions through a human-rights-based lens, concluding that their procedural shortcomings undermine substantive and symbolic benefits. It then offers several recommendations for a better path forward. Determining the appropriate framework for wartime justice in Ukraine is critical because it will likely serve as a model for transnational conflicts to come

The Road to Slow Deportation

Traffic stops are the most common form of police-initiated contact with members of the public. The sheer volume of traffic stops combined with their use as a pretext to surveil Black and Latiné communities has generated substantial scholarship and movements for police reform. Yet this commentary assumes that the subjects of traffic stops are U.S. citizens. At the same time, scholarship on the intersection of criminal and immigration law and the convergence of their enforcement methods focuses on traffic stops as the immediate entry point for removal proceedings. This Article addresses the gap in literature by describing the experience of noncitizens who endure frequent traffic stops that result in neither immediate criminal nor immigration proceedings but nonetheless produce significant legal and nonlegal consequences—consequences that are likely to grow under a second Trump administration. This Article frames the experience of traffic stops for noncitizens as a form of “slow deportation.” It describes how the use of traffic stops to police noncitizens extends the system of racialized social control to immigrant communities with the effect of surveilling both race and status. It surveys scholarship across disciplines, racial categories, and citizenship status and uses our clients’ stories to map the cumulative, compounding, and subterranean harms of traffic stops that culminate in the emotional, social, and sometimes legal exclusion of noncitizens and their families. This Article concludes by proposing new approaches to counseling, policy reform, and coalition building informed by the lens of slow deportation

Law and Historical Materialism

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. Others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was—and remains—disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world