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Excessive Force and the Media

Recent allegations of police officers using excessive force against people of color have received considerable attention in the media. Yet such incidents have largely stalled in the legal system. With a few notable exceptions, neither criminal nor civil proceedings, at either the federal or state level, have provided recourse for those injured by the police […]

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Originalism as Faith

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The Untold EpiPen Story: How Mylan Hiked Prices by Blocking Rivals

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From Hospitals to Prisons: A New Explanation

Deinstitutionalization from state mental hospitals was largely over by 1980, but the percentage of prisoners with mental illness did not begin to skyrocket until 1990. The leading theories for the criminalization of mental illness cannot fully explain this gap. This Essay offers a new theory: the Supreme Court in 1990 reduced the costs of incarcerating […]

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Toward a Civilized System of Justice: Re-conceptualizing the Response to Sexual Violence in Higher Education

The reporting, investigation, and prevention of sexual violence in settings that are closed off from the greater community and subject to their own laws, rules, norms and biases present special challenges for survivors of sexual violence.  This essay builds on our existing scholarship that explores the pervasive problem and exceedingly high incidence of sexual violence […]

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The Hart-Scott-Rodino Act’s First Amendment Problem

The Hart-Scott-Rodino Antitrust Improvements Act (“HSR Act”) is a centerpiece of federal antitrust law. Designed to aid enforcement of Clayton Act Section 7, which prohibits mergers and acquisitions that “may . . . substantially . . . lessen competition” or “tend to create a monopoly,” the statute requires purchasers of an issuer’s voting securities exceeding […]

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The Open Society and Its Digital Enemies: A Reply to Professors Bambauer and Garrett

Don’t let our title fool you. Jane Bambauer and Brandon Garrett are friends of an open society, not its enemies. In distinct and distinctly important ways, they have engaged and expounded upon our concept of digital innocence, and in so doing, they have emboldened us to find the courage of our convictions and indeed to […]

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Big Data and Due Process

Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. Those traces can sometimes be tracked far more reliably than the types of trace evidence traditionally examined […]

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Collection Anxiety

DNA is not the only path to exoneration. Some of the wrongfully accused exculpate themselves using video recordings, transaction records, and other digital information. Given the gluttonous data collection practices of our government, these exoneration stories should be much more frequent than they are. Digital Innocence by Joshua A.T. Fairfield and Erik Luna puts forward […]

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Habeas Corpus Standing Alone: A Reply to Lee B. Kovarsky and Stephen I. Vladeck

The differences between habeas corpus and due process are important. The Due Process Clause, among other things, regulates the procedures that the government must use before it detains a person and holds the person in custody. But the Suspension Clause safeguards a more elemental habeas privilege. That is, under the Suspension Clause, the judge examines […]

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