Emad H. Atiq, Associate Professor of Law and Philosophy

“Reasonable Moral Doubt,” New York University Law Review, vol. 97 (2022)

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it in Kansas v. Carr. According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply. Implicit in these rulings is a controversial view of the nature of moral judgment. This article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system. For the “reasonableness” of doubt depends on context; and moral questions—”are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

John Blume, Samuel F. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project

“Ghosts of Executions Past: A Case Study of Executions in South Carolina in the Pre-Furman Era,” Cornell Law Review, vol. 107, no. 6 (2022).

During the waning months of the Trump Administration, thirteen persons on federal death row were executed. They all maintained that the lethal injection protocol the federal government intended to use presented an unconstitutional risk of a torturous death. While lower federal courts determined that their allegations deserved additional scrutiny, and in several cases entered injunctions preventing the executions, an exasperated majority of the United States Supreme Court in Barr v. Lee summarily vacated the lower court’s decision and effectively “greenlighted” lethal injection executions if they can be carried out by a single dose of pentobarbital sodium. The Court reasoned that this dosage is widely conceded to render a person “fully insensate” and does not carry the risks of pain that “some have associated with other lethal injection protocols.” Barr is the most recent in a series of decisions by the Court upholding various forms of lethal injection against constitutional attack, and declaring that the federal government and the states, “[f]ar from seeking to superadd terror, pain, or disgrace to their executions,” have attempted to develop new ways to carry out executions that are “less painful and more humane than traditional methods, like hanging, that have been uniformly regarded as constitutional for centuries.

Sara Bronin, Associate Member of the Law Faculty and Professor of City and Regional Planning, Cornell College of Architecture Art and Planning (with coauthor Leslie R. Irwin, Cornell Law J.D. Class of 2023)

“Regulating History,” Minnesota Law Review, vol. 108, no. 1 (forthcoming 2023).

America’s local historic commissions collectively wield tremendous influence over millions of privately owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state governments, which have declined to offer robust legal protections to private historic sites.

Litigation challenging local historic decisions and press vilifying commissions for their alleged elitism, anti-environmental decisions, and general obstruction of progress have put preservation in the contemporary crosshairs. While the authors align with those who believe that clear-thinking commissions can successfully mediate between the past and the present, for the sake of the future, they decline to wade deeply into these debates. Instead, Bronin and Irwin expose an uncomfortable truth: neither opponents nor supporters have a full grasp of historic preservation law.

This article peels back the curtain, revealing for the first time its broad reach and deep control over private property and by extension our built heritage. The article offers a meticulous census of over 3,500 local ordinances, comprehensively analyzes enabling authorities across all fifty states, explores the extent to which demographic and political factors correlate with local adoption, and delves deeply into the content of over 300 local ordinances. Just as importantly as this comprehensive analysis, this article fills a gap in the sparse literature on local administrative law, using new empirical data to illuminate the commonality of particular procedural and substantive regulatory levers; the complicated dynamics between federal, state, and local governments; and the ambition and motives of local regulators.

This article provides the first nationwide empirical basis for current debates about local historic district commissions, proving that these commissions are both surprisingly common and surprisingly influential over private property. It also offers insights with practical implications for the preservation field and theoretical implications for administrative legal theory.

Maggie Gardner, Professor of Law

“Admiralty’s Influence,” George Washington Law Review, vol. 91 (2023).

Over the course of the twentieth century, as transnational litigation expanded beyond the realm of maritime trade, the U.S. Supreme Court migrated special admiralty procedures into general civil practice. Because the Supreme Court did not account for the admiralty roots of these procedures, it never fully addressed the separation-of-powers implications of their migration. The procedures also lost important nuance in the process of migration, ossifying into tools of docket control that do not adequately account for international comity or fairness concerns.

This article traces the migration of three such doctrines: forum non conveniens, the enforcement of forum selection clauses, and the modern presumption against extraterritoriality. That story provides a few insights: First, these doctrines are not as timeless or inevitable as judicial decisions—particularly those of the Supreme Court—might suggest. As modern reinventions, there is no reason they cannot be further reformed or refined (or reconsidered altogether). Second, in the transition to general civil practice, these doctrines lost much of the nuance regarding international comity that informed their use in admiralty. One way in which these doctrines might be refined, then, would be to reintroduce the contextual flexibility they previously enjoyed. Third, because the transformation of these admiralty doctrines into doctrines of general applicability was not explicit, the Supreme Court did not attempt to justify the migrated doctrines’ greater incursion on the legislative powers of Congress or the states. These doctrinal migrations thus represent greater judicial lawmaking than the language of the Supreme Court opinions would suggest to the casual reader.

James Grimmelmann, Tessler Family Professor of Digital and Information Law (with coauthor Christina Mulligan)

“Data Property,” American University Law Review, vol. 72 (forthcoming 2023).

In this, the Information Age, people and businesses depend on data. From your family photos to Google’s search index, data has become one of society’s most important resources. But there is a gaping hole in the law’s treatment of data. If someone destroys your car, that is the tort of conversion and the law gives a remedy. But if someone deletes your data, it is far from clear that they have done you a legally actionable wrong. If you are lucky, and the data was stored on your own computer, you may be able to sue them for trespass to a tangible chattel. But property law does not recognize the intangible data itself as a thing that can be impaired or converted, even though it is the data that you care about, and not the medium on which it is stored. It’s time to fix that.

This article proposes, explains, and defends a system of property rights in data. According to the authors’ theory, a person has possession of data when they control at least one copy of the data. A person who interferes with that possession can be liable, just as they can be liable for interference with possession of real property and tangible personal property. This treatment of data as an intangible thing that is instantiated in tangible copies coheres with the law’s treatment of information protected by intellectual property law. But importantly, it does not constitute an expansive new intellectual property right of the sort that scholars have warned against. Instead, a regime of data property fits comfortably into existing personal-property law, restoring a balanced and even treatment of the different kinds of things that matter for people’s lives and livelihoods.

Jacob Hamburger, Immigration Postdoctoral Associate and Adjunct Professor of Law

“Hybrid-Status Immigrant Workers,” Duke Law Journal (forthcoming 2023).

Precarious work arrangements have become a dominant feature of twenty-first-century political economy. One employer strategy that has contributed to eroding workers’ rights and protections is misclassifying them as independent contractors, avoiding the obligations that come with employee status. Recently, policymakers in some states and at the federal level have sought to combat this trend by expanding the definition of employment, notably by adopting the three-prong standard known as the ABC test. The misclassification problem has received much attention in both legal scholarship and public discourse, but these discussions have not sufficiently addressed how these reforms affect a particularly vulnerable subset of precarious workers: undocumented immigrants without federal employment authorization.

Immigrant workers often depend on independent contractor status to work. Federal immigration law requires employers to verify that all employees are permitted to work in the United States, but does not require such verification for independent contractors. As a result, immigrants can work as independent contractors without having to fraudulently claim work authorization. Independent contractor jobs are no less precarious for immigrants than for their native-born counterparts, but new reforms may improve their working conditions by extending to them many of the protections of labor and employment law. However, these reforms may also have the unintended consequence of shutting immigrant workers out of the formal economy by defining more work arrangements as employment.

This article examines how efforts to combat employee misclassification can include immigrants without federal work authorization. It argues that immigrant workers can hold a hybrid status: defined as “employees” under new, broader labor and employment law definitions of the term, while remaining “independent contractors” for immigration purposes. As a result, these reforms do not trigger new work authorization verification requirements for employers that make it harder for immigrants to work. At the same time, allowing this hybrid status to coexist between work law and immigration law contexts will likely require action on the part of both state legislatures and federal agencies. In the fast-evolving context of immigration federalism, promoting hybrid status for unauthorized workers promises to be a powerful tool for states seeking to implement an inclusive immigration agenda.

G.S. Hans, Associate Clinical Professor of Law

“Revisiting Roommates.com,” Berkeley Technology Law Journal, vol. 36, no. 1227 (2022).

Fair Housing Council of San Fernando Valley v. Roommates.com holds an important place in the history of cases interpreting § 230, the federal law which has facilitated the growth of the modern internet. But unlike many other § 230 cases, which concern defamation claims, Roommates.com focused on alleged violations of the Fair Housing Act. The Fair Housing Act, the final major 1960s federal civil rights law, holds an important place in our racial justice history— one that § 230 and the Room – mates.com decision limit.

This article examines the history and legacy of Roommates.com, situating it within the framework of the Fair Housing Act to focus debates over § 230 reform. As a case that, at the time, complicated the dominant interpretations of § 230 and yet ultimately stymied enforcement of the Fair Housing Act online, Roommates.com demonstrates how the promise of civil rights laws has fallen short in a digital economy. Even as § 230 has facilitated speech online for individuals, civil rights protections have lagged. By re-evaluating Roommates.com in a larger history beyond technology law, this article aims to evaluate more fully what § 230 reforms might further the goals of civil rights protections and what costs might result.

Valerie P. Hans, Charles F. Rechlin Professor of Law (with coauthor Vivian Rotenstein)

“Gentlewomen of the Jury,” Michigan Journal of Gender & Law, vol. 29 (2022).

This article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

Michael Heise, William G. McRoberts Professor in the Empirical Study of Law (with coauthor Gregory C. Sisk)

“Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts,” Arizona Law Review, vol. 64 (2022).

Drawing on our continuing empirical study of decisions on the Free Exercise of Religion, we suggest that the federal courts were approaching equilibrium in outcomes from 2006 to 2015. In a departure from our prior studies examining the preceding twenty years, we now observe that claimants from the majority of religions did not experience either success or failure at significantly different rates.

The principle of expansive and inclusive religious freedom in the United States has been blemished by a persistent history of inequality and intolerance. In prior studies, we found that Catholics, Baptists, and Muslims suffered marked disadvantages when they sought accommodation for religious practices. For 2006– 2015, by contrast, variation in claimant outcomes from Catholic, Baptist, Islamic, and most (but not all) other traditions did not achieve significance.

Consistent with a possible trend toward equilibrium, our case type variables are remarkably robust and significant. In an ideal religious liberty doctrinal regime, the balance between accommodating religious exercise and upholding important government purposes will shift with the character of the dispute defined by these conflicting interests. Our encouraging results indicate that the driving force in deciding religious liberty decisions increasingly is the case’s contextual background rather than the claimant’s religious identity.

Andrei Marmor, Jacob Gould Schurman Professor of Philosophy and Law

“Rationalizing Practices,” Foundations of Institutional Reality, Oxford University Press (2023).

It is often thought that any philosophical account of a social practice needs to offer the kind of explanation that would rationalize the practice for its participants, make it intelligible to them why they engage in it, and what the point of it is, for them. Marmor calls this the internal rationalization constraint. His main argument in this chapter is that a reductive metaphysical explanation of a social practice is not subject to the internal rationalization constraint, and that this is one of the main differences between a metaphysical theory of social practices and an hermeneutical one.

Marmor uses some of the key debates about the nature of law as his main examples in this chapter. He tries to show that Hart’s conception of what to expect from a theory about the nature of law is metaphysical and reductive. The interpretative critique leveled against it, predominantly by Dworkin, presupposes a very different methodology, and one that is clearly guided by the internal rationalization constraint. Marmor’s main argument is that metaphysical theories about the nature of law, or any other social practice for that matter, do not need to rise to the challenge. A grounding-reductive account of social practices does not need to meet the internal rationalization constraint. Hermeneutic theories of practices do take the rationalization of the practice for its participants as an important objective, but then they must also rely on a different, essentially normative methodological framework.

Brian Richardson, Assistant Professor of Law (with coauthors Christopher Havasy and Joshua Macey)

“Against Political Theory in Constitutional Interpretation,” Vanderbilt Law Review (forthcoming 2023).

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Jed Stiglitz, Associate Dean for Faculty Research and Professor of Law (with coauthor Jennifer Nou)

“Strategic Rulemaking Disclosure, Southern California Law Review, vol. 89 (2016).

Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this article uses a new dataset spanning over thirty years of rule making (1983–2014). Uniquely, the dataset is drawn directly from the Federal Register. The resulting findings confirm that agencies substantially underreport their rule making activities—about 70 percent of their proposed rules do not appear on the Unified Agenda before publication. Importantly, agencies also appear to disclose strategically with respect to Congress, though not with respect to the president. The Unified Agenda is thus not a successful tool for Congress to monitor and influence regulatory development. The results suggest that legislative, not executive, innovations may help to augment public participation and democratic oversight, though the net effects of more transparency remain uncertain. The findings also raise further inquiries, such as why Congress does not render disclosure requirements judicially enforceable.