The Case for the Abolition of Criminal Confessions

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms. This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, this overvaluation means both that innocent defendants are systemically pressured into proclaiming their guilt and that juries are so swayed by it—even in light of countervailing evidence—that they render wrongful convictions. Indeed, as practice and empirical evidence demonstrate, this is not merely a theoretical possibility: false confessions and resulting miscarriages of justice occur with disturbing frequency. Moreover, confession evidence, and the methods to obtain it, impose significant harms on defendants in terms of their due process and moral rights, due to the pressures of interrogation, investigation, and jeopardy. And our current constitutional and evidentiary doctrines are incapable of addressing these harms, for these doctrines fail to recognize that false confessions are often caused by overwhelming pressures endemic to our criminal justice system. Consequently, solving these problems requires a comprehensive, properly focused solution that goes far beyond our current doctrinal hodgepodge. The abolition of confession evidence meets that demand. Compared to other solutions that have been proposed, such as further limiting law enforcement and prosecutorial conduct or introducing expert testimony and evidence, the abolition of such evidence best apprehends and mitigates the epistemic and moral concerns arising from confession evidence and interrogation. In addition, it coheres with and flows from the Constitution’s due process requirement of voluntariness in confessions and the evidentiary requirements of reliability. Finally, it would preserve and improve key features of our criminal justice system, namely interrogation, plea bargaining, and the assessment of evidence

False Positivism: The Failure of the Newest Originalism

Originalism is a juggernaut. It pervades our constitutional discourse and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with fidelity to original meaning. The newest effort in this struggle is the so called positive turn in originalism. Positivist originalism seeks to refocus constitutional interpretation from normative questions — about morality, linguistics, interpretation, and authority — to what the law actually is, as embodied by our legal practice. This focus, we are told, comes from H.L.A. Hart\u27s legal positivism — a theory of law based on social facts and the actual behavior of officials in the legal system. The resulting positivist originalism — which contends that our law includes the original precepts and methods of the founding era — promises to provide historical and empirical conditions for the validation of our law, without appeal to theoretical questions about the law.The project of positivist originalism fails. I proffer four criticisms of positivist originalism: First, positivist originalism\u27s commitments contravene key insights of legal positivism. Second, positivist originalism, and its real-world formulation called original-law originalism, do not actually describe our practice of law (or do so trivially). Third, the methodology of positivist originalism cannot sustain its conclusion, in light of the facts that our obligation to follow the law is at best qualified and because there are equally good competing theories describing our law. Fourth, beyond these internal flaws, positivist originalism fails to solve any of the problems that have continually plagued the originalist enterprise. Thus, the project of positivist originalism cannot fulfill its aims and is unlikely to do so without appealing to the very theoretical questions it was devised to avoid

The Iron Rule

This nomination is about more than who occupies one seat on the Supreme Court. It is about more than the legal status of Roe v. Wade1 and reproductive rights and autonomy,2 the constitutionality of Obamacare,3 the recognition of LGBTQ+ rights,4 or the future of unions and the labor rights movement.s It is about more than the adherence and prominence of legal doctrines such as stare decisis and originalism.6 It is even about more than who will control one of the three branches of government for a generation.7 Make no mistake, this nomination is about all of these things. And that is a lot of things. But the nomination of Judge Amy Coney Barrett to Justice Ruth Bader Ginsburg's seat on the Supreme Court and the rhetoric employed by the G.O.P. to justify the nomination threaten to undermine the meaning and the continuing viability of institutional norms-in Senate judicial confirmations, in congressional interactions more generally, and maybe in all of our politics

ADsafety: Type-Based Verification of JavaScript Sandboxing

Web sites routinely incorporate JavaScript programs from several sources into a single page. These sources must be protected from one another, which requires robust sandboxing. The many entry-points of sandboxes and the subtleties of JavaScript demand robust verification of the actual sandbox source. We use a novel type system for JavaScript to encode and verify sandboxing properties. The resulting verifier is lightweight and efficient, and operates on actual source. We demonstrate the effectiveness of our technique by applying it to ADsafe, which revealed several bugs and other weaknesses.Comment: in Proceedings of the USENIX Security Symposium (2011

\u3ci\u3eBostock\u3c/i\u3e was Bogus: Textualism, Pluralism, and Title VII

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent