Discretion and Disparity in Federal Detention

By: Stephanie Holmes Didwania

Incentivized Torts: An Empirical Analysis

By: J. Shahar Dillbary, Cherie Metcalf & Brock Stoddard

Can There Be Too Much Specialization? Specialization in Specialized Courts

By: Melissa F. Wasserman & Jonathan D. Slack

Bostock v. Clayton County and the Problem of Bisexual Erasure

By: Nancy C. Marcus

Festschrift Celebrating Professor Marshall Shapo

Videos From Symposium 2020: The Second Amendment’s Next Chapter

NULR of Note: COVID Special Coverage

"Extraordinary" and "Highly Controversial": Federal Research of Solar Geoengineering Under NEPA

By: Charles R. Corbett

Discretion and Disparity in Federal Detention

By: Stephanie Holmes Didwania | March 14, 2021

The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly 20% of those held in criminal custody in the United States. Largely overlooked by bail-reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60% of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear in court, and they are rarely arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is disfavored in federal courts. Most federal defendants who are released pending trial are released on personal recognizance or unsecured bond. This Article argues that the federal experience with pretrial detention— beginning with its historical roots in old English law and ending with the enormous and disparate detention rates that I document today—provides important lessons for those seeking to reform bail in both federal and state law. This Article tackles a critical empirical question: does the modern, broadly discretionary, federal detention regime generate race- or gender- based disparities in pretrial detention? To answer this question, this Article leverages an expansive new dataset that covers more than 300,000 federal defendants sentenced between fiscal years 2002 and 2016. The results are sobering. White defendants are more likely to be released pending trial than otherwise similar Black and Hispanic defendants, and female defendants are more likely to be released pending trial than otherwise similar male defendants. More importantly, a disparity analysis that recognizes the intersectional relationship between race and gender paints a more complex picture. The most extreme racial disparities are among male defendants—where Black men are four percentage points and Hispanic men are six percentage points more likely to be detained than similarly situated white men. Among female defendants, however, racial disparity presents the opposite relationship: Black women are more likely to be released pending trial than Hispanic and white women. Notably, this disparity pattern for women does not appear in other studies of pretrial detention in state courts, where white women are often the most likely race–gender group to be released. Based on this empirical evidence, the Article assesses several possible legal changes to address disparity, including amending the federal Bail Reform Act to allow judges to consider costs in detention decisions, limiting or prohibiting the consideration of dangerousness, expanding appellate review, and narrowing or eliminating statutory presumptions of detention. The Article ends by offering cautionary lessons for states embarking on bail reform.

Incentivized Torts: An Empirical Analysis

By: Dillbary, J. Shahar, Cherie Metcalf & Brock Stoddard | March 14, 2021

Courts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These findings are consistent across a series of robustness checks, including both regression analyses and nonparametric tests. We also test courts’ and scholars’ insistence that the but-for test fails in cases subject to group causation. We use a novel experimental design that allows us to test whether, and to what extent, each individual’s decision to engage in a tortious activity is influenced by the decisions of others. Upending conventional belief, we find strong evidence that the but-for test operates in group causation settings (e.g., concurrent causes). Moreover, across our experiments, subjects’ reliance on but-for causation produced the very tort that group liability attempted to discourage. A major function of liability in torts, criminal law, and other areas of the law is to deter actors from engaging in socially undesirable activities. The same is said about doctrines that result in group liability. Our empirical results challenge this basic logic.

Can There Be Too Much Specialization? Specialization in Specialized Courts

By: Melissa F. Wasserman & Jonathan D. Slack | March 14, 2021

While modern society has embraced specialization, the federal judiciary continues to prize the generalist jurist. This disconnect is at the core of the growing debate on the optimal level of specialization in the judiciary. To date, this discussion has largely revolved around the creation of specialized courts. Opinion specialization, however, provides an alternative, underappreciated method to infuse specialization into the judiciary. In contrast to specialized courts, opinion specialization is understudied and undertheorized. This Article makes two contributions to the literature. First, this Article theorizes whether opinion specialization is a desirable practice. It argues that the practice’s costs and benefits are a function of whether the court itself is specialized. More specifically, this Article contends that while opinion specialization may be normatively desirable for generalist courts, it is likely not for specialized tribunals. Perhaps most concerning, this Article argues that opinion specialization in specialized courts increases the likelihood legal doctrine will reflect the idiosyncratic preferences of a few judges. Second, given the concerns associated with opinion specialization in specialized tribunals, this Article empirically tests the extent to which specialization occurs in these specialized courts. We approach this question by examining the process of opinion assignment in the U.S. Court of Appeals for the Federal Circuit, which is best known for its near-exclusive jurisdiction over patent appeals. Utilizing a novel, author-constructed database of Federal Circuit opinions issued between 2004 and 2018, we find that opinion specialization is a robust part of the Federal Circuit’s practice. This Article demonstrates that opinion specialization may have led to several highly criticized legal developments at the Federal Circuit, exploring mechanisms in which opinion specialization may be diminished, and examining the implications of our findings for the broader judiciary.

Nw. U. L. Rᴇᴠ.

COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation

May 5, 2020

There has been much press coverage on the Navajo Nation’s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in responding to the pandemic, including a high population of people […]