In Graham v. Connor, the Supreme Court held that a Fourth Amendment reasonableness standard governed the analysis of any allegation that a law enforcement officer used excessive force during an arrest or investigatory stop. In particular, courts were to evaluate the reasonableness of the need to use force from the perspective of a hypothetical reasonable police officer at the scene. While this test seems straightforward, the Supreme Court...
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In 2005, the Immigration and Customs Enforcement (ICE) agency enacted a policy sanctioning its civil ICE agents to use strategic deception, known as โruses,โ to facilitate community immigration enforcement operations. This policy provided agents a means to overcome the limitation that civil immigration arrest warrants are administrative as opposed to judicial in nature, which effectively precluded agents from entering a targetโs home without...
In Kelly v. United States, the Supreme Court vacated the federal corruption convictions of the three government officials behind โBridgegate.โ In the process of doing so, the Court flagged an interesting tool that states have in their anticorruption toolkits that mightโve applied to the conduct before the Court: official misconduct statutes. These dynamic statutes are on the books in twenty-three states and territories, and another...
During and after last yearโs expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identiยญfiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision....
After President Trump declared a national emergency and diverted funds to build a wall on the southern border, several litigants challenged his action as ultra vires, or beyond his constitutional and statutory authority. The litigants asserted abstract equitable rights of action, implied in federal courtsโ equitable powers. The Supreme Court has left unclear, however, whether or not such an implied equitable action for statutory...
In the digital context, companies often use โdishonest designโโcommonly known as โdark patternsโโto trick or push consumers into doing things they wouldnโt necessarily have done otherwise. Existing scholarship has focused on developing a taxonomy and definitions for different categories of dark patterns, conducting empirical research to better understand the effectiveness of dark patterns, and broadly surveyยญing...
The conventional view of corporate governance is that it is a neutral set of processes and practices that govern how a company is managed. We demonstrate that this view is profoundly mistaken: For public companies in the United States, corporate governance has become a โsystemโ comยญposed of an array of institutional players, with a powerful shareholderist orientation. Our original account of this โcorporate governance machineโ generates...
Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a โmere reading demonstratesโ that โArticle V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.โ Although it is familiar...
An unfamiliar equality principle is gaining prominence in constiยญtutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the governmentโs interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implicaยญtions for other guarantees in constitutional law. This Article offers two arguments....
In response to Black Lives Matter protests across the country in the summer of 2020, then-President Donald Trump sent federal agents into numerous American cities to โdominateโ the protesters. These agents were largely unidentified, lackingย both departmental insignia and badges disยญplaying their personal identification information. As we have seen in the past, when law enยญforcement officers do not identify themselves, they can evade accountabilยญity...