Top 10 Lawarxiv Papers Today in Law


1.997 Mikeys
#1. How Constitutional Norms Break Down
Cornell Law Library, Josh Chafetz, David E. Pozen
65 U.C.L.A Law Review 1430 (2018). From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials. This Article calls attention to that latent instability and, in so doing, begins to taxonomize and theorize the structure of constitutional norm change. We explore some of the different modes in which unwritten norms break down in our constitutional system and the different dangers and opportunities associated with each. Moreover, we argue that under certain plausible conditions, it will be more...
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Authors: 3
Total Words: 12464
Unqiue Words: 4593

1.996 Mikeys
#2. The Varieties of Constitutional Change
Lawrence Friedman, Helen Litwack
While federal constitutional law has changed over the two hundred plus years since the framing, relatively little of that development was the result of the formal amendment process prescribed by Article V. Rather, significantly more change to our understanding of numerous constitutional provisions has come about through litigation over the meaning of the text. Regardless of the source of constitutional alteration, we regard the result as valid constitutional law. But that difference in source has fueled a great many efforts to legitimize judicial interpretation as a mode of constitutional change—to legitimize, that is, constitutional development by the least representative, least accountable department of the federal government. State constitutions, on the other hand, tell a different story. In the state constitutional context, the tension between litigation-driven change and amendment-driven change is diminished by the fact that formal amendment is a more realistic proposition that it is under the U.S. Constitution. This piece is...
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Total Words: 1596
Unqiue Words: 757

1.988 Mikeys
#3. Black, White, and Blue: Bias, Profiling, and Policing in the Age of Black Lives Matter
Bridgette Baldwin, Western New England University School of Law
Published: Bridgette Baldwin, Black, White, and Blue: Bias, Profiling, and Policing in the Age of Black Lives Matter, 40 W. NEW ENG. L. REV. 431 (2018). The United States has experienced a series of murders at the hands of the police in recent years, from Michael Brown to Tamir Rice to Eric Garner. The brutalization of Black people at the hands of the police is not new, but many are being introduced to the concept of police brutality through the channels of social media. Hashtags like #BlackLivesMatter and #TakeAKnee have revolutionized the conversation about racism and policing, bringing these incidents into mainstream media and common conversation. This movement has led to a deeper discussion on the following questions: (1) Why are Black people viewed as violent by the police?; (2) Why are these murders and acts of brutality being seen so regularly?; and (3) What has the criminalization of communities of color done to damage the public's perception of Black communities? This Article attempts to answer all of these questions,...
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Total Words: 6524
Unqiue Words: 2628

1.987 Mikeys
#4. Constitutional Law—Do Black Lives Matter to the Constitution?
Bruce Miller, Western New England University School of Law
Published: Bruce Miller, Constitutional Law—Do Black Lives Matter to the Constitution?, 40 W. NEW ENG. L. REV. 459 (2018). Do Black lives matter to the Constitution? To the original Constitution, premised as it is on white supremacy, they plainly do not. But do the post-Civil War Amendments, sometimes characterized as a "Second Founding," provide a basis for a more optimistic reading? The Supreme Court's application of the Fourteenth Amendment's Equal Protection guarantee, shaped by the long discredited (and now formally overruled) decision in Korematsu v. U.S., has seriously diminished the likelihood that our basic law can redeem the promise of racial equality. Korematsu's embrace of a purely formal account of racial discrimination, its blindness to the history and present reality of societal discrimination against racial minorities and its identification of racial antagonism (or animus), as opposed to racial subordination, as the primary evil evidenced by discriminatory laws together assure a very limited reach for the Equal...
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0.0 Mikeys
#5. Laird v. Tatum and Article III Standing in Surveillance Cases
Jeffrey Vagle
Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.
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Authors: 1
Total Words: 5195
Unqiue Words: 2092

0.0 Mikeys
#6. Education Rights and Wrongs: Publicly Funded Vouchers, State Constitutions, and Education Death Spirals
Michael Heise, Cornell Law Library
42 Fordham Urban Law Journal 745 (2015). A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703 (2015).
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Total Words: 7305
Unqiue Words: 2586

0.0 Mikeys
#7. A Right to Reasonable Inferences: Re-Thinking Data Protection Law in the Age of Big Data and AI
Sandra Wachter, Brent Mittelstadt
Big Data analytics and artificial intelligence (AI) draw non-intuitive and unverifiable inferences and predictions about the behaviors, preferences, and private lives of individuals. These inferences draw on highly diverse and feature-rich data of unpredictable value, and create new opportunities for discriminatory, biased, and invasive decision-making. Concerns about algorithmic accountability are often actually concerns about the way in which these technologies draw privacy invasive and non-verifiable inferences about us that we cannot predict, understand, or refute. Data protection law is meant to protect people’s privacy, identity, reputation, and autonomy, but is currently failing to protect data subjects from the novel risks of inferential analytics. The broad concept of personal data in Europe could be interpreted to include inferences, predictions, and assumptions that refer to or impact on an individual. If seen as personal data, individuals are granted numerous rights under data protection law. However, the legal status...
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Authors: 2
Total Words: 38864
Unqiue Words: 6930

0.0 Mikeys
#8. Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana
W. Bradley Wendel, Cornell Law Library
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response to McCoy, regarding the ethical obligations of defense counsel. The most important caution is that, as a matter of constitutional law and professional ethics, the preference for autonomy and the standard allocation of decision making authority presupposes a fully competent client, not a client who merely passes the extremely low constitutional bar of competency to stand trial. A client capable of participating in a fully...
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Total Words: 17991
Unqiue Words: 4533

0.0 Mikeys
#9. A Cooperative Federalism Approach to Shareholder Arbitration
Zachary D. Clopton, Verity Winship, Cornell Law Library
128 Yale Law Journal Forum 169 (2018). Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced. The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. In particular, the overlapping authority of federal and state actors with respect to corporate law calls for approaches that sound in cooperative federalism. Yet cooperative-federalist approaches have been absent from recent debates about shareholder arbitration. This Essay explains why cooperative federalism is a natural fit for addressing...
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Authors: 3
Total Words: 6727
Unqiue Words: 2461

0.0 Mikeys
#10. The Varieties of Constitutional Change
Helen Litwack, Lawrence Friedman
While federal constitutional law has changed over the two hundred plus years since the framing, relatively little of that development was the result of the formal amendment process prescribed by Article V. Rather, significantly more change to our understanding of numerous constitutional provisions has come about through litigation over the meaning of the text. Regardless of the source of constitutional alteration, we regard the result as valid constitutional law. But that difference in source has fueled a great many efforts to legitimize judicial interpretation as a mode of constitutional change—to legitimize, that is, constitutional development by the least representative, least accountable department of the federal government. State constitutions, on the other hand, tell a different story. In the state constitutional context, the tension between litigation-driven change and amendment-driven change is diminished by the fact that formal amendment is a more realistic proposition that it is under the U.S. Constitution. This piece is...
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Sample Sizes : None.
Authors: 2
Total Words: 1596
Unqiue Words: 757

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