Articles

Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ultimately deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to challenge the growth of the mass deportation regime effectively. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.

A large body of scholarship has debated the constitutionality of criminalizing travel to seek abortions—an issue with new salience in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade. Increasingly, however, antiabortion activists are turning to civil remedies as a supplement or alternative to criminal prosecution in cases involving out-of-state abortions. In contrast to criminal jurisdiction, where the outer bounds of states’ authority to punish out-of-state conduct is highly uncertain, the extraterritorial application of state law in civil litigation is a common, routine effect of choice-of-law analysis that is unlikely to raise constitutional difficulties. As a result, it is reasonable to expect that courts in antiabortion states may give broad geographical effect to abortion-restrictive laws and policies in at least some civil litigation. The resulting decisions are likely to create substantial friction between states, as abortion-permissive states try to protect their own citizens from liability even as the Full Faith and Credit Clause demands recognition of foreign-state judgments that courts may be reluctant to give. Similar clashes between state policies have, to be sure, happened before, and this Article explores their outcomes in the areas of divorce liberalization, cannabis legalization, and the enforceability of noncompete clauses. At the same time, abortion is likely to give rise to broader and more intractable conflicts than any other issue courts have confronted in the recent past. Although individual judges can reduce occasions for interstate friction by applying restrained, conduct-focused conflicts principles, the states’ fundamental disunity on the underlying issue of abortion may prove to be a problem that our choice-of-law
system is simply not equipped to resolve.

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.

This Article offers an in-depth analysis of the core legal issues concerning abortion related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and economic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and economic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states’ efforts to conscript them into a war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from warrants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care.

Neoliberalism and its accompanying austerity measures are shrinking local and
national government budgets, even though constituent needs remain pressing. In
desperation, public officials sometimes replenish public coffers through illicit
extraction from segments of the population poorly positioned to fight back. In
Detroit, for example, city officials inflated property tax assessments in violation of
the Michigan Constitution, leading to illegally inflated property taxes that many
homeowners could not afford to pay. Consequently, since 2009, one in three homes
have completed the property tax foreclosure process, the highest number of property
tax foreclosures in American history since the Great Depression. These
unlawful practices are not just occurring in Detroit, but also in other American
cities such as Ferguson, Philadelphia, and New Orleans.

Nevertheless, because corruption is universally defined as corrupt acts that are for
private or personal gain, there is currently no lexicon to describe illegal acts that
principally benefit the public treasury. I have coined the term “stategraft” to
describe this overlooked phenomenon: when state agents transfer property from
persons to the state in violation of the state’s own laws or basic human rights. To
establish stategraft as an essential theoretical framework, this Article elaborates its
definitional elements, demonstrates its conceptual value, and shows how it extends
existing discourses on corruption, state crime, and the predatory state.

In the battle for market supremacy, many firms are employing pricing software that
removes humans from price-setting decisions. These pricing algorithms fundamentally
change the dynamics of competition and have important implications for antitrust
law. The Sherman Act has two operative provisions. Section One condemns
agreements between firms that unreasonably restrain trade, such as price-fixing
agreements. Section Two prohibits monopolizing a relevant market through
anticompetitive conduct. Although a considerable body of excellent scholarship
explains how pricing algorithms can collude to fix prices in violation of Section
One, no scholarship discusses how algorithmic pricing could violate Section Two.

This Article addresses how pricing algorithms can facilitate illegal monopolization
through predatory pricing. Predatory pricing is a two-stage strategy. First, in the
predation phase, the predator charges a price below its costs, reckoning that its
rivals will exit the market because they cannot make profitable sales at that price.
The predator willingly incurs losses in order to force its rivals from the market.
Second, during the recoupment phase, after its rivals have exited the market, the
predator recovers its earlier losses by charging a monopoly price.

Theorists have asserted that predatory pricing claims are inherently implausible for
three reasons: (1) The predator must suffer disproportionately outsized losses
because it controls a larger share of the market; (2) predatory pricing threats are
not credible because a firm cannot believably commit to below-cost pricing; and
(3) firms that exited the market during the predation phase will simply reenter the
market during the recoupment phase. Based on these theoretical arguments, federal
judges consistently reject predatory pricing claims.

This Article explains how algorithmic pricing undermines all three theoretical arguments
claiming that predatory pricing is not a credible route to monopoly. First, a
predatory firm can use pricing algorithms to identify and target its rivals’ customers
for below-cost pricing, while continuing to charge their own existing customers a
profitable price, which minimizes the predator’s losses during the predation phase.
Second, algorithms can commit to price predation in ways humans cannot. Third,
pricing algorithms present several new avenues for recouping the losses associated
with predatory pricing, including algorithmic lock-in and price manipulation. In
short, even if one believed that predatory pricing was implausible in the past, the
proliferation of algorithmic pricing changes everything. Because pricing algorithms
invalidate the theories behind the current judicial skepticism, this evolving technology
requires federal courts to revisit the letter and spirit of antitrust law’s treatment
of predatory pricing claims.

This Article reinvigorates the case for abolishing strict liability in the criminal law.
Undertaking an intellectual history of mens rea policy, I spotlight two assumptions
that have fueled strict liability’s historic rise and current deprioritization in criminal
justice reform. One assumption is that eliminating culpable mental states from
criminal statutes is an effective means of reducing crime. The other assumption is
that adding culpable mental states to criminal statutes is an ineffective means of
lowering prison rates or promoting racial justice. This Article argues that these
assumptions are unsupported by available evidence and have no place in criminal
policymaking. Synthesizing decades of social science research, I first explain why
there is little reason to believe that strict liability promotes public safety. Next,
building upon the first-ever legal impact study of mens rea reform, I explain how
adding culpable mental states to criminal statutes could alter charging practices and
conviction rates. I then demonstrate the racial justice benefits of universal mens rea
standards by highlighting the concentration of strict liability in offenses disparately
enforced against people of color. Through this deeper understanding of mens rea
policy, the Article reveals the strength of the case against strict liability, and why
culpable mental state requirements are an important tool in the fight against mass
incarceration.

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.