Evidence-Based Lawyer Regulation

Elizabeth Chambliss
The legal profession is losing its authority over the regulation of legal services. Recent changes in antitrust law have put state bar associations under a spotlight. Competition from technology companies and concerns about access to justice have increased political pressure for market liberalization. Independent research is challenging the unique value of lawyers’ services, even in formal legal proceedings, and this research is increasingly well-organized and well-funded at the national level.…

Criminal Clear Statement Rules

Carissa Byrne Hessick and Joseph E. Kennedy
There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive. Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws. The problems of over-criminalization thus seem to be both a predictable yet intractable consequence of the incentives that…

Interstitial Space Law

Melissa J. Durkee
Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this “attributed lawmaking.” Consider the new…

Technologically Distorted Conceptions of Punishment

Jessica M. Eaglin
Much recent work in academic literature and policy discussions suggests that the proliferation of actuarial—meaning statistical—assessments of a defendant’s recidivism risk in state sentencing structures is problematic. Yet scholars and policymakers focus on changes in technology over time while ignoring the effects of these tools on society. This Article shifts the focus away from technology to society in order to reframe debates. It asserts that sentencing technologies subtly change key…

Border Searches of Electronic Devices

Rebecca M. Rowland
In fiscal year 2018, U.S. Customs and Border Protection (“CBP”) searched 33,295 electronic devices at the border without first needing a warrant.  In fiscal year 2015, only about 8,500 electronic devices were searched at the border; in fiscal year 2016 that number rose to about 19,000; in fiscal year 2017 the number of devices searched increased again to over 30,000.  The continued nontrivial increases in the number of electronic devices…

Blockchain Prediction Markets: Where They Came From, Why They Matter & How to Regulate Those Involved

Joshua D. Dubin
The basis of CFTC prediction market jurisdiction stems from its interpretation of trades in prediction markets as swaps of commodity futures and options contracts.  The CFTC has recognized that prediction markets have the capacity to facilitate information discovery and therefore benefit the public;  nevertheless, Commission staff have indicated that these public-interest benefits only extend to contracts related to subject matters which have generally-accepted and predictable financial, commercial, or economic consequences. …

Exploiting Pre-Existing Beliefs

Ahmed E. Taha
Advertisements and product labels for a wide range of consumer and investment products have highlighted product characteristics that some people erroneously believe make them superior to competitor goods and services. This article argues that these advertisements and labels are deceptive because they imply that those erroneous beliefs are accurate even if they don’t mention the erroneous beliefs. Moreover, these advertisements and labels can deceive even those individuals who have no…