Abstract
Some members of Congress propose to make it a crime to publish the name of a federal official with the intent of obstructing that official’s law or immigration enforcement duties. This Essay considers whether the lawmakers’ bill, the Protecting Law Enforcement from Doxxing Act, is consistent with the First Amendment. It is not.
Litigating Unconscious Racism After Clary: Lessons From the Subconscious Copying Doctrine
Abstract Scientific studies show that implicit biases operate insidiously in the legal system, often harming disfavored social groups. Helpfully, the Equal Protection Clause prohibits government discrimination, which logically would include actions driven by implicit bias. District Court Judge Clyde Cahill found just that in the 1994 case United States v. Clary, which struck down the sentencing...
Caseload Transparency: A New Approach to the Ethics of Excessive Caseloads
Abstract It is no secret that public defenders across the country struggle with arguably excessive caseloads that limit the effectiveness of the representation they can provide. Excessive caseloads force public defenders to triage cases, a practice which is regarded as unethical because it creates a conflict of interest among a lawyer’s existing clients. In order to avoid excessive caseloads...
“Teaching Law in a Time of Retrenchment”: A Reflection From the Editors of Discourse Volume 72
Insider Trading and Position Limits
Abstract Federal law has long prohibited insider trading in securities such as stocks and bonds. Yet many other financial assets—particularly derivatives and commodities—have historically fallen outside those rules. This Article asks why insider trading is penalized for some assets but not others. It argues that the goals of insider trading law are often pursued through alternative mechanisms...
Digital Evidence in U.S. Criminal Litigation: Risks to Racial Justice
Abstract Criminal defendants increasingly face the risks of digital evidence. These risks include intentional manipulation, accidental alteration, and even the threat that visual displays like footage or data visualizations lure viewers into an unquestioning acceptance of events as they seem to have unfolded. Some scholars have deemed the U.S. evidence system responsive to issues like intentional...
The Right to Truth
Abstract This Article argues that today’s anti-CRT statutes, book bans, and “divisive concepts” laws are not isolated culture-war skirmishes but the latest chapter in a long campaign—dating back to the Lost Cause and the United Daughters of the Confederacy—to legislate white innocence as national identity. By sanitizing slavery, suppressing discussions of systemic racism, and threatening...
The Public Harms of Private Surveillance
Abstract Private surveillance is rapidly reshaping public space. With inexpensive storage, widespread amplification, and integrated data sharing, modern surveillance networks operate with unprecedented scale, prevalence, and influence. Unlike the neighborhood watches of the past, these networks are always on, subjecting public movements to facial recognition from doorbell cameras, license plate...