Judicial Resistance to New York\u27s 2020 Criminal Legal Reforms

This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects. Scholars such as Malcolm Feeley, Brian Ostrom, and Roger Hanson have written about how the informal organizational culture of a court system can be an impediment to reforms. Their analysis applies to New York’s 2020 reforms and provides insight into why this specific resistance occurred and how it can be addressed. The judiciary was included in planning and discussing the 2020 reforms and the reforms sought to remove judicial discretion in the matters of bail and discovery. Yet when it came time to implement the change, judges used other powers to avoid releasing individuals and to avoid sanctioning prosecutors. This is at least partially due to New York’s judicial appointment scheme which makes the judiciary sensitive to structural narratives concerning public safety and court leniency. Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary’s implementation of the law

Toward a Socio-Legal Theory of Male Rape

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender. The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works. Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes. The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits

Fraud in a Land of Plenty

This Essay discusses the regulation of fraud in a developed economy and offers some explanations for why fraud appears to be on the increase. Ironically, regulation designed to combat fraud can actually increase fraud by attracting economic activity to fraud-ridden industries. In other words, regulation can create problems of its own by fostering the false perception that fraud is being addressed even when it is not. This analysis is relevant in the context of the current surge in sentiment to regulate cryptocurrencies in the wake of the FTX and Sam Bankman-Fried debacle. Such regulation threatens to attract more resources to cryptocurrency trading, which is a dubious proposition in light of the fact that cryptocurrencies produce little social value and merely transfer wealth rather than create it. The Essay discusses some of the reasons why fraud may be on the increase. First, strong market forces aimed at reducing managerial agency costs have had the unintended consequence of increasing the incentives of top corporate managers to commit fraud. The market forces both richly reward managers for generating strong returns for shareholders and severely punish managers for failing to reach investors’ expectations regarding corporate performance. While these rich rewards and strong punishments serve the interests of shareholders and society, they also enhance executives’ incentives to commit fraud. Another factor in the increase in fraud in financial markets has been the expansion of the concept of fraud. Historically, the term fraud was used to describe conduct that was truly egregious and involved purposeful deceit designed to provide the perpetrator with unlawful gains. As shown here, however, in the financial context the concept of fraud has been expanded to include behavior that is entirely inadvertent and benign. The expansion of the concept of fraud threatens to increase the incidence of traditional fraud by depriving the term “fraud” of its historic capacity for shaming because the prospect of being shamed is a significant deterrent to committing fraud

Obey or Abey: An Empirical Examination of Abeyance Agreements in Public School Discipline

“Exclusionary discipline” is widely understood to mean the typical responses to student misbehavior in public schools: suspension and expulsion. But sometimes their lesser-known counterpart, the abeyance agreement, swoops in before the suspension or expulsion is effectuated and gives the student a “second chance” to avoid such exclusionary discipline—provided the student complies with the terms of the agreement. It sounds simple, but the reality is far more complicated. Without a clearly defined, regulated, and tracked practice, abeyance agreements are an off-record discipline device used at the sole discretion of public school district administrators. Joining a landscape of urgent concerns over the disproportionate use of exclusionary discipline against Black students, male students, and students with disabilities, the use of abeyance agreements by public schools as an alternative to traditional exclusionary discipline raises concerns as to whether their use may similarly—and detrimentally—reflect these trends. But we simply don’t know. Presently, little to no quantitative research or qualitative discussion exists on the use of abeyance agreements in public school discipline. This Note is an exploration of that unknown: it introduces abeyance practices and the legal and policy concerns they raise, and identifies potential next steps in addressing their use. Most notably, this Note presents original datasets that illustrate the current landscape of abeyance practices in two large U.S. school districts and, in doing so, provides a baseline for comprehensive empirical research on the issue

Role-Reversibility, AI, and Equitable Justice - Or: Why Mercy Cannot Be Automated

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within the long arc of criminal justice philosophy, from Anaximander to Aristotle to Seneca. Simply put, role-reversibility facilitates mercy. And mercy is both (1) central to the operation of a humane legal system and (2) impossible, even in principle, to automate

The Immigration Shadow Docket

Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision-making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket. The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system

Voter Due Process and the Independent State Legislature

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation of Article II power. More recently, state litigants have sought to win the Court’s endorsement of the ISLT to preserve maps from the 2020 redistricting cycle that state courts found unconstitutional. Finally, ahead of the 2022 term, the Court granted certiorari in Moore v. Harper, a North Carolina redistricting case that centers on the ISLT question. These developments are, in a word, unsettling. This Note assumes for the sake of argument that the Court will endorse some version of the ISLT in the near future, through Moore v. Harper or a similar vehicle. It argues that potential election-subversion scenarios, even if undertaken by a Court-endorsed “independent” state legislature, are nevertheless textually constrained by the Due Process Clauses of the Fifth and Fourteenth Amendments. That is, a legislature acting under color of the ISLT would violate voters’ due process “liberty” interests if it invokes the ISLT to manufacture antidemocratic outcomes. In so doing, this Note expands upon established due process frameworks in the voting context—including settled expectations, detrimental reliance, and fundamental fairness—and applies these principles to the novel context of the ISLT. By addressing a variety of textual and practical considerations in this developing area, this Note is the first to provide workable and credible constraints to limit independent legislatures from subverting well-settled democratic processes

The Rise and Fall of Section 502B

The first major foreign policy legislation of the human rights revolution of the 1970s,1 Section 502B of the Foreign Assistance Act (FAA) is a latent oversight tool that Congress could use to promote human rights in U.S. security assistance. Section 502B may be the most potent provision of law regarding human rights and security assistance that has never been used. The provision prohibits U.S. security assistance to governments that engage in a consistent pattern of gross violations of human rights, requires the State Department to report on human rights issues, and provides Congress with a mechanism to enforce the statute’s prohibition. This paper traces Section 502B’s history and contends that Congress should incorporate Section 502B into its efforts to promote human rights in U.S. security assistance. Section I discusses how Section 502B functions. Section II then traces the introduction and strengthening of the statute in the context of a rise in congressional oversight and attention to human rights in the 1970s. Section III tracks the decline of Section 502B, pointing to executive resistance to implement the provision’s mandates, judicial tolerance of 502B violations, and legislative reluctance to enforce the statute. Section IV notes a quiet reemergence of interest in Section 502B since 2018. Finally, Section V offers recommendations for how and in which contexts Congress could invoke Section 502B to exercise oversight for U.S. security assistance

CURIOSITIES OF STANDING IN TRADE SECRET LAW

Standing under the Uniform Trade Secrets Act – the right to pursue a misappropriation claim – is a vexing question when compared to patent, copyright, and trademark law. Instead of requiring ownership or license rights as a condition to sue, courts often find that mere possession of an asserted trade secret suffices for standing, even when the provenance of the information is murky. In some cases, courts even allow trade secret plaintiffs to claim intellectual property rights in the preferences and desires expressed to them by their customers in lawsuits designed to stop former employees from doing business with those same customers. Relaxed requirements for trade secret standing under the UTSA can weaken the showing needed to establish a valid trade secret. For example, a plaintiff with only mere possession may not always be able to account for the history of the information it possesses – but it would nonetheless be permitted to proceed even though the defendant cannot challenge whether reasonable security measures were always used to guard the information in the past. Dubious claims based on preferences expressed by customers could be transformed into intellectual property for the sole purpose of blocking an alternative supplier whom the very same customers may prefer. In the worst instances, loose standing rules centered on mere possession could encourage parties to claim rights over types of information to which trade secret law should never extend, such as workplace injury data and personal attributes of employees. This article explores how courts in trade secret cases have come to apply standing rules that are more permissive than those seen in other areas of intellectual property law. It concludes that some courts remain confused about whether trade secret claims are property rights or instead something closer to broader, looser restrictive covenants. This conceptual confusion results in questionable standing decisions inconsistent with the statutory elements of a trade secret claim and, more broadly, the goals of intellectual property law. Much of the conundrum results from a poorly-reasoned 2001 Fourth Circuit decision on trade secret standing. It offered a patina of suspect theory regarding what it styled the “inherent nature” of trade secret law and undercut a property-centered conception of trade secret law, and proposed that mere possession could suffice to assert a claim. Many courts addressing state law trade secret disputes in the last two decades have followed this decision, sometimes expressly adopting its vision of trade secret law as a relational doctrine rather than an intellectual property doctrine. This is the first comprehensive article on trade secret standing, and the first to probe the dangers posed when requirements for trade secret standing are relaxed. It will isolate the philosophy behind questionable rulings which deviate from the property-centered requirements of the UTSA. This article will also explore whether a mere-possession rule of trade secret standing undermines the requirement that a plaintiff prove that reasonable security measures were used to safeguard the information. We will explore whether allowing trade secret claims in the preferences and desires expressed by customers should be analyzed as a question of standing to best protect departing employees as well as robust market competition. The article will question whether the problematic conception of trade secret law seen in many standing cases could open the door to nontraditional trade secret claims which threaten important public policy interests. In the end, we will conclude with solutions that courts can effect without legislative change