Online Features

Online Symposium

Race Decriminalization and Criminal Legal System Reform

Michael Pinard

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system. As a result, these reforms do not reach deeply enough. They do not address or confront the reality that simply being Black has been and will continue to be criminalized.

This Article asserts that measures beyond these reforms—measures that reach the root of racial criminalization—are necessary for true criminal legal system transformation.


Closing the Border

Jonathan P. Riedel

Terrorists. Narcotrafficking. Coronavirus. Refugees. There are many reasons—real or imaginary, compelling or contrived—for governments to want to restrict people’s movement. In March 2019, President Trump hinted that he was considering closing the border with Mexico. He cited the vast numbers of migrants approaching the southern border as a justification for closure, then pivoted to concerns about drug trafficking. Possibly emboldened by a victory in the 2018 “travel ban” case of Trump v. Hawaii, the President asserted a unilateral power to close the border. The general consensus among political leaders and economists was that closing the border would be an economic and political catastrophe, disrupting billions of dollars’ worth of goods while doing little to combat the asylum backlog or illegal narcotics trafficking. He soon backed off, with a one-year warning to Mexico that is fast approaching as of the publication of this Note. But the question remains: Can he do it? This Note considers the question and concludes that while very brief or geographically limited closures are authorized as a matter of statute and constitutional doctrine, any indefinite, long-term, and expansive border closure would be statutorily unauthorized and give rise to meritorious due process claims by some categories of noncitizens. In between these two extremes, the permissibility of a closure would depend on the temporal and geographical scope of it, tracking general separation-of-powers principles.

Adverse Employment Actions in Failure-to-Accommodate Claims: Much Ado About Nothing

Nicole Buonocore Porter

This Article addresses a circuit split in the disability law jurisprudence. Under the Americans with Disabilities Act (ADA), employees generally bring two types of claims against their employers—discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving that the employee suffered an adverse employment action. Succeeding on a failure-to-accommodate claim does not. But several courts—including a recent case in the Tenth Circuit—have added this adverse- employment-action requirement into failure-to-accommodate claims. In doing so, these courts have camouflaged important issues about an employer’s obligation to provide a reasonable accommodation to disabled employees. Although I believe that courts that require an adverse employment action in failure-to-accommodates claim do so in error, the main contribution of this Article is to reveal how courts have obscured and confused broader disability-accommodation issues by imposing that requirement.


Local Law 97: Emissions Trading for Buildings?

Danielle Spiegel-Feld

In April of 2019, the New York City Council passed groundbreaking legislation capping the amount of greenhouse gases that large building owners can emit, or cause to be emitted, before heavy fines are imposed. The new law, known as Local Law 97 of 2019 (“Local Law 97”), holds great promise for reducing building energy use, which accounts for roughly forty percent of emissions across the globe and over two-thirds of emissions in New York City. However, it will also impose substantial costs on the local real estate industry. With an eye towards minimizing these costs, Local Law 97 calls on the City to conduct a study exploring the potential creation of an emissions trading program for regulated buildings. Trading programs have been successfully used for years in industrial sectors to reduce the administrative cost of emissions control, yet how to translate the lessons learned from industrial trading programs to buildings is still very much an open question. In this essay, I highlight some key points of distinction between the emissions trading program that New York City is contemplating and prior programs that policymakers will need to bear in mind as they develop a trading scheme for this novel context. As the federal government retreats from its efforts to tackle climate change, and the burden of doing so falls increasingly upon local leaders’ shoulders, the question of how to tailor emissions trading programs to the local landscape will doubtless be relevant for cities beyond New York. Because emissions trading programs, like other types of market-based environmental policies, are designed to lower the cost of achieving environmental goals, cities that successfully implement emissions trading programs may be able to tackle climate concerns more effectively.

The Surprise Return and Transformation of Racial Gerrymandering

Michael C. Li

Racial gerrymandering is a doctrine that has had a surprising evolution. It began in controversy in the 1990s with legal challenges brought by white voters to the creation of majority-minority districts. By injecting a deeply skeptical, color-blind requirement into the redistricting process, the Supreme Court’s racial gerrymandering jurisprudence looked for much of the 1990s like a serious, and perhaps even fatal, threat to the ability to draw majority-minority districts under the Voting Rights Act. But those fears ultimately were misplaced.

This Article argues instead that the doctrine, while suffering from some jurisprudential and analytical complexities, has proven nonetheless to be a remarkably flexible tool for courts to address the intersection of race and politics. This decade, racial gerrymandering has evolved to be both a potent tool to block the packing of African American voters and a means to police at least some forms of partisan gerrymandering.


Automated Seizures: Police Stops of Self-Driving Cars

Elizabeth E. Joh

When the police suspect a driver is breaking the law, the Fourth Amendment allows them to stop the car. This means compelling the driver to bring the car to a halt. Sometimes a car stop will lead to further investigation, searches, and even arrests. What will these stops look like when people no longer drive their cars and police officers no longer pursue them by driving their own? Autonomous cars are not yet commonplace, but soon they will be. Yet little attention has been paid to how autonomous cars will change policing. The issue matters enormously because today the police spend a lot of time stopping cars. For instance, the most common contact most adults in the United States have with the police takes the form of a traffic stop. Vehicles equipped with artificial intelligence and connected both to the internet and one another may be subject to automated stops. The issue is already being discussed as a theoretical possibility and as a desirable policing tool. This essay considers the law and policy issues that will arise when car seizures become remote and automated.

Ensuring Good Deeds Go Unpunished: The SCRA, FECRA, IFRFEA, and Protecting Federal Employees During Shutdowns

Russell Spivak

As the nation has seen multiple times in recent years, federal government shutdowns are harmful to the American public, but are disastrous for federal employees. In the most recent shutdown, nearly a million people missed two paychecks, many of whom were nonetheless required to show up to work and thus forego earning a supplemental wage elsewhere. This was not just. Some lawmakers have tried to rectify this by proposing bills that would create a framework for protections based on the Servicemembers Civil Relief Act, which enshrines particular safeguards against litigation and administrative matters for those serving in uniform. This Article discusses those protections and their applicability to unpaid federal employees as well as other protections—some proposed, some not. The Article then reviews the constitutionality of the potential provisions. Finally, the Article addresses the political ramifications of such a law’s passage, namely if increased protections would beget more shutdowns.

License to Hack

Dyane L. O’Leary

Legal hackathons are exploding in popularity. “Hacking” is a term often associated with illegal behavior, but a hackathon is something different. At a hackathon, lawyers, technologists, data scientists, public interest organizations, law students, and just about anyone who is interested converge in a friendly, time-pressured competition aimed at solving some defined problem. For more than a decade, different industries have looked to hackathons as a source of new ideas. Today, the legal industry uses hackathons to spark creation of innovative tools to chip away at the access to justice crisis and improve the delivery of legal services.

But often lost in the excitement is a key piece to hackathon success: treatment of the intellectual property. For example, who owns the copyright in software created at a hackathon? What about a new business method? What about the rights to trademark a new design? Most hackathons have some form of a participant agreement, but many outright ignore the “who owns it” question or fail to address it in a purposeful manner.This is a problem in need of a solution—or at least some concrete guidance.

This Article explores intellectual property rights in the context of legal hackathons. How intellectual property is approached at the start can impact the success (or not) of creations at the end. Taking rights away from participants risks alienating them and interfering with the collaborative and fun spirit most hackathons embody. Yet giving participants all the marbles may not be preferable either, especially if it disincentivizes organizers to support future development and help a tool survive beyond the hackathondoors. In circumstances where one size doesn’t fit all, this Article discusses pros and cons of varying approaches to intellectual property in hackathon participant agreements. Embodying the hackathon resolve to create something tangible and useful for others, the Article connects readers to an online repository of sample agreements as well as a participant agreement template.

Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice

Rashida Richardson, Jason M. Schultz, Kate Crawford

Law enforcement agencies are increasingly using predictive policing systems to forecast criminal activity and allocate police resources. Yet in numerous jurisdictions, these systems are built on data produced during documented periods of flawed, racially biased, and sometimes unlawful practices and policies (“dirty policing”). These policing practices and policies shape the environment and the methodology by which data is created, which raises the risk of creating inaccurate, skewed, or systemically biased data (“dirty data”). If predictive policing systems are informed by such data, they cannot escape the legacies of the unlawful or biased policing practices that they are built on. Nor do current claims by predictive policing vendors provide sufficient assurances that their systems adequately mitigate or segregate this data.

In our research, we analyze thirteen jurisdictions that have used or developed predictive policing tools while under government commission investigations or federal court monitored settlements, consent decrees, or memoranda of agreement stemming from corrupt, racially biased, or otherwise illegal policing practices. In particular, we examine the link between unlawful and biased police practices and the data available to train or implement these systems. We highlight three case studies: (1) Chicago, an example of where dirty data was ingested directly into the city’s predictive system; (2) New Orleans, an example where the extensive evidence of dirty policing practices and recent litigation suggests an extremely high risk that dirty data was or could be used in predictive policing; and (3) Maricopa County, where despite extensive evidence of dirty policing practices, a lack of public transparency about the details of various predictive policing systems restricts a proper assessment of the risks. The implications of these findings have widespread ramifications for predictive policing writ large. Deploying predictive policing systems in jurisdictions with extensive histories of unlawful police practices presents elevated risks that dirty data will lead to flawed or unlawful predictions, which in turn risk perpetuating additional harm via feedback loops throughout the criminal justice system. The use of predictive policing must be treated with high levels of caution and mechanisms for the public to know, assess, and reject such systems are imperative.

“Avoiding” Judicial Activism: The Supreme Court’s Unconvincing Efforts to Restrict the Scope of the Avoidance Canon

Brian G. Slocum

The canon of constitutional avoidance is jurisprudentially important but poorly constructed. The Supreme Court frequently uses the canon in significant cases to justify second-best interpretations of statutes that avoid serious constitutional questions. Nevertheless, the trigger for the application of the avoidance canon, textual “ambiguity,” has not been coherently developed by the Court and differs in important ways from ambiguity as linguists typically view it. In addition, the Court, in focusing on “ambiguity” as a precondition for the application of the avoidance canon, fails to recognize the different ways in which a statute might be indeterminate. Recently, the Court reaffirmed its conception of the avoidance canon in a case, Jennings v. Rodriguez, involving prolonged immigration detention. In Rodriguez, the Court focused on ambiguity to the exclusion of other types of linguistic indeterminacy and continued to defend an unduly narrow conception of ambiguity that rejects implicit limitations on the scopes of statutes. This Article argues that the Rodriguez case highlights the need for the Court to reassess the avoidance canon. By doing so, the Court can give the avoidance canon a more defensible foundation that is consistent with the ways in which language operates.