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September 12, 2017

Discovering Forensic Fraud

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, the authors argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny and propose the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.

July 31, 2017

Amoral Machines, Or: How Roboticists Can Learn to Stop Worrying and Love the Law

The media and academic dialogue surrounding high-stakes decisionmaking by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit-maximizing firms risks marginalizing the field of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay attempts to both halt this trend and offer a course correction. Invoking Justice Oliver Wendell Holmes's canonical analogy of the “bad man . . . who cares nothing for . . . ethical rules,” it demonstrates why philosophical abstractions like the trolley problem—in their classic framing—provide a poor means of understanding the real-world constraints robotics engineers face. Using insights gleaned from the economic analysis of law, it argues that profit-maximizing firms designing autonomous decisionmaking systems will be less concerned with esoteric questions of right and wrong than with concrete questions of predictive legal liability. Until such time as the conversation surrounding so-called “moral machines” is revised to reflect this fundamental distinction between morality and law, the thinking on this topic by philosophers, engineers, and policymakers alike will remain hopelessly mired. Step aside, roboticists—lawyers have this one.

July 6, 2017

Engines of Anxiety Interview with Wendy Espeland and Michael Sauder

How have law school rankings affected legal education and the lives of admissions officers, deans, and students? Learn more in this interview with Professors Wendy Espeland and Michael Sauder on their book Engines of Anxiety.

June 13, 2017

Clarence Thomas the Questioner

One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Observers have criticized him for his silence, with some suggesting that it reflects disrespect for his colleagues and the advocates appearing before the Supreme Court. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that Thomas’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is very talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions for a new reason: he is good at it.