Generative Suspicion and the Risks of AI-Assisted Police Reports

Police reports play a central role in the criminal justice system. Many times, police reports exist as the only official memorialization of what happened during an incident, shaping probable cause determinations, pretrial detention decisions, motions to suppress, plea bargains, and trial strategy. For over a century, human police officers wrote the factual narratives that shaped the trajectory of individual cases and organized the entire legal system. This practice is about to change with the creation of AI-assisted police reports. Today, with the click of a button, large language models (LLMs), a type of generative AI using predictive text capabilities, can turn the audio feed of a police-worn body camera into a pre-written draft police report. Police officers then fill in the blanks of a few facts and submit the edited version as the official narrative of an incident. From the police perspective, AI-assisted police reports offer clear efficiencies from dreaded paperwork. From the technology perspective, ChatGPT and similar generative AI models have shown that LLMs are good at predictive text prompts in structured settings. Yet hard technological, theoretical, and practical questions have emerged about how generative AI might infect a foundational building block of the criminal justice system. This is the first law review article to address the challenges presented by AI-assisted police reports. The Article first interrogates the technology, providing a deep dive into how AI-assisted police reports work. Promises of innovation are countered by concerns about how the models were trained; questions regarding error, hallucinations, and bias in transcription; and uncertainty over how the final police report will be impacted by the generative prompts. Issues including structure, timing, legal gap-filling, and factual gap-filling are all addressed, with an eye toward comparing this innovation to existing human report writing. The Article also addresses theoretical questions about the role of the police report and contrasts two visions of a police report: a narrow, instrumental view and a broader accountability view. The goal is to show how a change in technology might also change the traditional role of the police report. Finally, the Article explores how AI-assisted police reports will alter criminal practice, especially in misdemeanor and low-level felony cases where investigation and grand jury action are minimal. A police officer’s determination of what happened as a factual and legal matter directly impacts initial prosecutorial charging decisions and judicial pretrial detention decisions. In addition, the police report influences plea bargains, sentencing, discovery obligations, and trial practice. The traditional standards of reasonable suspicion, probable cause, and proof beyond a reasonable doubt—historically grounded in the detailed factual narratives drafted by police officers—are now being replaced by AI-generative suspicion. The open question is how reliance on AI-generative suspicion will distort the foundation of a legal system dependent on the humble police report

Minimal Rationality and The Law of Evidence

For more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, rationality, and leaves it to the adversarial process to produce accurate (or inaccurate) results. Our primary aim is to describe the law of evidence and the rationality norm that best explains the evidentiary proof process. Although we largely put aside normative debates about whether the law of evidence should be constructed differently, our analysis generates normative implications. First, it generates implications for evidence scholarship, both positive and normative, that mismodels or misdescribes the law of evidence as pursuing maximal rationality (or other strong conceptions of rationality). Second, because the adversarial process—rather than the law of evidence—is primarily responsible for furthering accurate fact-finding, our analysis provides further support for increasing access to evidence and resources for criminal defendants. The various mechanisms and procedural devices that are designed to protect criminal defendants from wrongful convictions—the burden of persuasion, the right to counsel, and confrontation and compulsory process rights, for example—only work effectively with access to information. This Article, while primarily contributing to the ongoing reconceptualization of the field of evidence, has potentially radical implications for the criminal process

Who Holds the Hammer? A Private Ordering Framework as the Key to Carpenter’s Privacy Puzzle

This Note builds on the Supreme Court’s reasoning in Carpenter v. United States, suggesting that its technology-specific approach may be insufficiently elastic to address the complexities of modern data privacy. Through an analysis of several exemplars, this Note advocates for a private ordering framework—where data collectors respond to consumer expectations of privacy through self-regulating practices—as a more adaptive and effective means of safeguarding digital privacy. This approach preserves the third-party doctrine while reducing the burden on courts to draw technological boundaries in a rapidly evolving digital environment

Toward a Perpetual Practice of Affirmative Action

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited duration. This requirement was a point of contention in the SFFA case, where Chief Justice John Roberts criticized the lack of a precise end point in the affirmative action programs of Harvard and the University of North Carolina. To navigate the end point problem, this Essay proposes shifting the focus of affirmative action from achieving diversity to correcting racial bias in admissions processes. Educational institutions can create race-conscious programs that do not require a fixed end point by emphasizing the need to eliminate bias rather than simply achieving a diverse student body. This Essay also incorporates a feminist epistemological approach to understand the subjective nature of admissions processes. It critiques the belief that standardized tests and grades are objective measures, arguing that biases influence all assessments. Drawing on the work of feminist scholar Donna Haraway, this Essay suggests that universities must adopt practices that account for racial bias in their admissions processes, recognizing how measures such as standardized tests may favor certain racial groups and taking steps to correct these biases through race-conscious policies. This Essay concludes that affirmative action remains essential for achieving social justice and addressing racial biases in higher education admissions. The logical end point requirement should not hinder the effectiveness of affirmative action programs. Instead, institutions should focus on continuously assessing and correcting their admissions processes to ensure equality in admissions

The Market Value of Partisan Balance

For the past century, Delaware’s constitution has provided that no more than a bare majority of judges on the state’s courts may hail from the same political party. Some scholars and jurists theorize that Delaware’s commitment to a politically balanced judiciary increases the state’s attractiveness to out-of-state corporations and adds value to Delaware-chartered firms. These claims echo a larger literature in law and the social sciences positing that ideological diversity improves decisional quality. Recently, a series of federal court decisions in the case of Adams v. Carney put these claims to the test. In December 2017, a federal district court held that Delaware’s partisan-balance regime violates the First Amendment’s freedom-of-association guarantee because it discriminates among judicial candidates based on party affiliation. In December 2020, the U.S. Supreme Court vacated the lower court decision and restored Delaware’s scheme. The Adams litigation—which generated a series of exogenous shocks to Delaware’s legal regime—enables assessment of the value of partisan balance. If a politically balanced judiciary adds value to Delaware-chartered corporations, then the share prices of Delaware firms should have declined in the wake of the December 2017 district court decision and risen in response to the December 2020 Supreme Court ruling. This study examines how equity markets responded to key decisions in the Adams litigation. Applying a range of model specifications, we find that Delaware firms experienced negative abnormal returns on the district court decision date and positive abnormal returns on the Supreme Court ruling date, with these abnormal returns concentrated among small- and mid-sized firms. These findings—supplemented by results from other key dates in the Adams litigation—are broadly consistent with the theory that a politically balanced judiciary generally adds value to Delaware-chartered companies. Notably, though, we do not detect discernible stock price reactions to the Adams litigation among the largest publicly traded firms. We conclude by considering the implications of our results for two larger debates in legal scholarship: the debate over partisan-balance requirements for federal courts and the debate over Delaware’s dominance in the interstate market for corporate charters. As for the former, our results provide the first revealed-preference evidence for the claim that relevant stakeholders assign positive value to partisan-balance requirements for adjudicative bodies—a finding that potentially bolsters the arguments of scholars and politicians who want to extend similar requirements to U.S. Supreme Court Justices. As for the latter, our results suggest that Delaware’s commitment to a politically balanced judiciary accounts for a nontrivial component of the so-called “Delaware effect”—the share price boost observed in some studies for firms that reincorporate in the state. In the interjurisdictional market for corporate charters, Delaware’s judicial partisan-balance requirements may provide the state with a competitive advantage over states that lack similar provisions

The Renaissance of Private Law

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges. Against this gloomy background, we posit an unlikely hero: private law. Recent bursts of social activism in private litigation have led to impressive legal victories and multibillion-dollar awards in areas ranging from gun control to climate change. These achievements go a long way towards fashioning better legal responses to contemporary crises where governmental regulation has failed to do so. These victories are doubly surprising considering the supposed dominance of public law and regulation over private law as the primary legal framework for promoting broad policy goals. Thus, in the age of regulation we now inhabit, one would expect private law to take a back seat as the regulatory machinery—now more elaborate, capacious, and fine-grained than ever—takes charge. In this Article, we show that the exact opposite has happened. Contrary to expectations, private law not only remains relevant but often emerges as the most effective response to deep contemporary problems. To explain this seeming puzzle, we offer a comparative institutional analysis that highlights the multiple advantages of private law relative to regulation. The unique structural features of private law make it more flexible, adaptable, and responsive to rapid changes. Private law institutions, for various reasons, are also less susceptible to capture and can resist the effects of political polarization. Indeed, the rise in the importance of private law is due primarily to the decline of our political institutions. Not only does private law have various structural advantages over regulation, but it is also more democratic in that it provides a platform for a wealth of diverse preferences. Drawing on these insights, we move to our normative mission. We propose a series of procedural and substantive reforms that would facilitate and enhance the use of private law doctrines as legal responses to contemporary crises. Specifically, we explain how improving class actions, qui tam suits, and the cy pres doctrine could empower individual agents of change. We also call for the relaxation and modification of doctrinal elements of causation and harm. Finally, we come full circle by advancing a comprehensive account of the interaction, synergies, and complementary effects between regulation and private law