Issues

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court to subject state laws to a cost–benefit test would preserve a kind of judicial neutrality that a bald evaluative assessment would not. But cost–benefit analysis isn’t nearly as neutral as its proponents assume. Indeed, it involves a controversial, and arguably misguided, evaluative outlook that we should be hesitant to constitutionalize under the Commerce Clause. Still, I claim that there may be a limited role for Pike balancing, or something like it, in a narrow range of cases involving functional kinds with an uncontroversial telos such as trains and trucks. But even there, we should avoid the unhelpful abstraction of a “burden on interstate commerce.” Could Pike be defended as a proxy for other constitutional values? I argue that Pike fails even that test. Thus, it is far past time to retire Pike.

Police reports play a central role in the criminal justice system. Many times, police reports exist as the only official memorialization of what happened during an incident, shaping probable cause determinations, pretrial detention decisions, motions to suppress, plea bargains, and trial strategy. For over a century, human police officers wrote the factual narratives that shaped the trajectory of individual cases and organized the entire legal system.

This practice is about to change with the creation of AI-assisted police reports. Today, with the click of a button, large language models (LLMs), a type of generative AI using predictive text capabilities, can turn the audio feed of a police-worn body camera into a pre-written draft police report. Police officers then fill in the blanks of a few facts and submit the edited version as the official narrative of an incident.

From the police perspective, AI-assisted police reports offer clear efficiencies from dreaded paperwork. From the technology perspective, ChatGPT and similar generative AI models have shown that LLMs are good at predictive text prompts in structured settings. Yet hard technological, theoretical, and practical questions have emerged about how generative AI might infect a foundational building block of the criminal justice system.

This is the first law review article to address the challenges presented by AI-assisted police reports. The Article first interrogates the technology, providing a deep dive into how AI-assisted police reports work. Promises of innovation are countered by concerns about how the models were trained; questions regarding error, hallucinations, and bias in transcription; and uncertainty over how the final police report will be impacted by the generative prompts. Issues including structure, timing, legal gap-filling, and factual gap-filling are all addressed, with an eye toward comparing this innovation to existing human report writing.

The Article also addresses theoretical questions about the role of the police report and contrasts two visions of a police report: a narrow, instrumental view and a broader accountability view. The goal is to show how a change in technology might also change the traditional role of the police report.

Finally, the Article explores how AI-assisted police reports will alter criminal practice, especially in misdemeanor and low-level felony cases where investigation and grand jury action are minimal. A police officer’s determination of what happened as a factual and legal matter directly impacts initial prosecutorial charging decisions and judicial pretrial detention decisions. In addition, the police report influences plea bargains, sentencing, discovery obligations, and trial practice. The traditional standards of reasonable suspicion, probable cause, and proof beyond a reasonable doubt—historically grounded in the detailed factual narratives drafted by police officers—are now being replaced by AI-generative suspicion. The open question is how reliance on AI-generative suspicion will distort the foundation of a legal system dependent on the humble police report.

The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article argues for the latter approach largely on pragmatic grounds. In essence, our argument is based upon the realities of university organizational behavior, which make it difficult for universities to enforce speech codes in a manner that complies with their statutory and contractual obligations. Ambiguous codes, informal process, and political homogeneity among decision-makers inevitably result in inconsistent regulation of speech. These problems can be mitigated by committing to the First Amendment, which would both clarify and constrain university speech regulations by incorporating a large body of caselaw, some of which bears directly on higher education. Such clarity would limit the scope of university discipline, provide a basis for legally required consistency, and be more readily amenable to external review by courts and federal regulators. Experience with the First Amendment in public universities suggests that such a commitment will not have deleterious consequences for campus life.