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Northwestern University Law Review     Full-text available via subscription   (Followers: 8, SJR: 1.381, CiteScore: 1)
Northwestern J. of Technology and Intellectual Property     Open Access   (Followers: 7)
Northwestern J. of Law & Social Policy     Open Access   (Followers: 6)
Northwestern J. of Intl. Human Rights     Open Access   (Followers: 5)
Northwestern J. of Intl. Law & Business     Open Access   (Followers: 4, SJR: 0.107, CiteScore: 0)
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Northwestern Journal of International Human Rights
Number of Followers: 5  

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ISSN (Print) 1549-828X
Published by Northwestern University Homepage  [6 journals]
  • Towards an Equitable Review of Pre-Embryo and Divorce Disputes for Women

    • Authors: Lilah Kleban
      Abstract: Pre-embryos, procured through in-vitro fertilization (IVF), become a source of dispute when couples divorce or separate before using them. Particularly, couples may fight over who has decision-making power to use or not use the frozen pre-embryos for pregnancy. State courts across jurisdictions typically apply one of three categorical approaches: disposition contracts, contemporaneous mutual consent, or a balancing interests test. Each approach fails to provide courts with structures to fully evaluate each party’s interests at the time of dispute and account for inherent sex and gender differences that impact their stakes in the dispute. This Note proposes a modified balancing test that accounts for couples’ changing interests over time and provides defined balancing factors to ensure commensurate weight for sex and gender differences between parties.
      PubDate: Wed, 23 Nov 2022 18:52:38 PST
  • Law in the Service of Misinformation: How Anti-Vaccine Groups Use the Law
           to Help Spin a False Narrative

    • Authors: Dorit R. Reiss et al.
      Abstract: Social movements use legal tools to create narratives. Those narratives support social agendas which certain movements leverage to mislead their followers and potential followers. In this Article, we examine one influential anti-vaccine organization, the Informed Consent Action Network (ICAN), that uses its far-reaching platform to create false narratives around legal action. Again and again, this anti-vaccine group misrepresented both the legal and the factual meanings of court decisions, settlements, and other legal actions to create a narrative to galvanize its followers and influence newcomers. ICAN filed lawsuits that make anti-vaccine arguments—even when the legal framework did not fit doing so—and misrepresented the results. Most commonly in this category, while FOIA requests can only ask for documents and cannot ask queries, ICAN framed its frequent FOIA requests and subsequent lawsuits as if they were asking the agency to answer questions, rather than provide records. The group then presented the results to support one of its narratives—that vaccines cause autism—when the results did not, in fact, support such a narrative. This Article shows how legal tools advance disinformation and misinformation, creating a misleading, alternative reality.
      PubDate: Wed, 23 Nov 2022 18:52:37 PST
  • An Avenue for Corruption: Super PACs and the Common Vendor Loophole

    • Authors: Matt Choi
      Abstract: In their campaign efforts, Super PACs and political candidates often engage professional media agencies or political consulting firms to aid them in production and placement of advertisements on media outlets, planning of advertising efforts, and planning campaign strategy. But an increasing number of Super PACs have taken to hiring the same media agencies and consulting firms as the candidates they support. Through the use of a so-called “common vendor,” Super PACs and their supported candidates can coordinate advertising strategies with each other without triggering the federal limits on spending and fundraising.The Federal Election Commission (FEC) and the public must recognize the threat that the unregulated use of common vendors poses to our electoral democracy. Because the FEC has adopted regulations that make bringing complaints regarding common vendors nearly impossible, Super PACs and political candidates continue to evade accountability. The FEC should therefore reconsider adopting a rule presuming coordination whenever a Super PAC and a political candidate use a common vendor. By doing so, the FEC can require candidates and their Super PACs to truly ensure and document that no coordination takes place by performing due diligence prior to engagement and documenting their communications with the media agency. In addition, a more detailed firewall provision can serve to prophylactically stop actual coordination from taking place. Addressing the common vendor rule alone will not diminish the ever-increasing amount of funds poured into political campaigns by wealthy donors, but closing off this loophole is essential to an overall campaign regime of full disclosure from political actors.
      PubDate: Wed, 23 Nov 2022 18:52:37 PST
  • Do Prison Conditions Change How Much Punishment A Sentence Carries
           Out' Lessons From Federal Sentence Reduction Rulings During the
           COVID-19 Pandemic

    • Authors: Skylar Albertson
      Abstract: A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment—as contrasted with prison conditions—as the sole determinant of how much punishment a sentence carries out. Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions. Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions. The BOP used this authority almost exclusively for people who were in the final stages of terminal illness. The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the “extraordinary and compelling reasons” standard. The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so. Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons. Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment. This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws—including second looks—as well as efforts to increase transparency surrounding life inside prisons.
      PubDate: Wed, 23 Nov 2022 18:52:36 PST
  • The Doha Declaration at Twenty: Interpretation, Implementation, and
           Lessons Learned on the Relationship Between the TRIPS Agreement and Global

    • Authors: Eric M. Solovy
      PubDate: Mon, 21 Nov 2022 22:17:02 PST
  • Monitoring Sanctions Compliance at Sea

    • Authors: Richard L. Kilpatrick Jr.
      PubDate: Mon, 21 Nov 2022 22:17:01 PST
  • Unraveling the Longstanding Riddle About the Doctrine of Legitimate
           Expectation Under International Investment Law: Ascertaining Legal Tests
           for the Customary International Law’s Minimum Standard of Treatment

    • Authors: Haneul Jung et al.
      Abstract: In 2018, the ICJ rendered a judgment in Bolivia v. Chile that effectively denied the status of the doctrine of legitimate expectation as a customary international law. The ICJ’s judgment came as a surprise to many in the international arbitration community because a whole host of international tribunals established under various investment treaties have found that this doctrine, as well as the broader principle of “fair and equitable treatment,” has effectively attained the status as the “minimum standard of treatment” under customary international law. Given the lack of elaborated reasoning, however, the ICJ’s ruling fails to resolve the recurring debate over the legal status of the doctrine. This paper addresses this issue squarely, by first examining the historical development and the nature of the doctrine, and then the conflicting lines of jurisprudence that arose out of a number of investment arbitrations. Thereafter, this paper attempts to provide an answer to the longstanding question as to whether the doctrine of legitimate expectation has now attained status as customary international law. Finally, based on a systematic analysis of various investment treaties and numerous arbitral awards from the perspective of public international law, this paper tackles the old conundrum by providing a pragmatic guidance on ascertaining applicable legal tests for the “minimum standard of treatment” under contemporary customary international law.
      PubDate: Mon, 21 Nov 2022 22:17:00 PST
  • Big Data Affirmative Action

    • Authors: Peter N. Salib
      Abstract: As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated every such ambitious affirmative action plan that it has reviewed.This Article proposes a novel solution: Big Data Affirmative Action. Like old-fashioned affirmative action, Big Data Affirmative Action would award benefits to individuals because of their membership in protected groups. Since Black defendants are discriminatorily incarcerated for longer than whites, Big Data Affirmative Action would intervene to reduce their sentences. Since women are paid less than men, it would step in to raise their salaries. But unlike old-fashioned affirmative action, Big Data Affirmative Action would be automated, algorithmic, and precise. Circa 2021, data scientists are already analyzing rich datasets to identify and quantify discriminatory harm. Armed with such quantitative measures, Big Data Affirmative Action algorithms would intervene to automatically adjust flawed human decisions—correcting discriminatory harm but going no further.Big Data Affirmative Action has two advantages over the alternatives. First, it would actually work. Unlike, say, antibias trainings, Big Data Affirmative Action would operate directly on unfair outcomes, immediately remedying discriminatory harm. Second, Big Data Affirmative Action would be legal, notwithstanding the Supreme Court’s recent case law. As argued here, the Court has not, in fact, recently turned against affirmative action. Rather, it has consistently demanded that affirmative action policies both stand on solid empirical ground and be well tailored to remedying only particularized instances of actual discrimination. The policies that the Court recently rejected have failed to do either. Big Data Affirmative Action can easily do both.
      PubDate: Sun, 13 Nov 2022 08:45:17 PST
  • Independent Contractors in Law and in Fact: Evidence from U.S. Tax Returns

    • Authors: Eleanor Wilking
      Abstract: Federal tax law divides workers into two categories depending on the degree of control exercised over them by the service purchaser (i.e., the firm): employees, who are subject to direct supervision; and independent contractors, who operate autonomously. Such worker classification determines the administration of income tax and what it subsidizes, as well as which nontax regulations pertain, such as workplace safety and antidiscrimination protections. The Internal Revenue Service and other federal agencies have codified common law agency doctrine into multifactor balancing tests used to legally distinguish employees from independent contractors. These tests have proved challenging to apply and costly to enforce. Yet we know almost nothing about how firms actually classify workers systemically and how such classification relates to the control firms exercise over workers.To bridge this gap between legal principles and legal practice, this Article introduces a novel empirical analysis using a comprehensive data source—all digitized U.S. income tax filings between 2001 and 2016. This analysis establishes several new facts. First, using six measures of firms’ control over workers, I show that employees and contractors have grown increasingly similar over the past two decades. I found this convergence to be particularly pronounced among lower earning workers. I then develop a novel theoretical framework to interpret these findings. Second, I provide empirical evidence that the presence of financial incentives created by government policy increases the likelihood that employees are reclassified as contractors.These results suggest a growing misalignment between how workers are classified and the substance of firm–worker relationships. Put another way, two otherwise identical workers, with relationships that feature a similar degree of control, may end up being classified differently due to, among other factors, their firms’ financial incentives. I conclude by discussing the key normative questions raised by the apparent erosion of the legal boundary delimiting contractors and employees.
      PubDate: Sun, 13 Nov 2022 08:45:13 PST
  • Reimagining Public Safety

    • Authors: Brandon Hasbrouck
      Abstract: In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, abolitionists desire a society where the entire public is safe. That safety requires security in all our material needs, not merely protection from private violence.Abolition democracy challenges us to envision a society where all people have the respect, education, economic resources, civil rights, and franchise necessary to participate fully in all significant aspects of public life—a society in which we are both safe and free. This challenge to our worldview is further compounded by the prevalence of inequality and a culture of violence in American society. In this Article, I meet that challenge with a groundbreaking look at how such a vision requires us to look at public safety not as a zero-sum game between liberty and security, but as a collaborative promotion of life, liberty, and pursuit of happiness for all.
      PubDate: Sun, 13 Nov 2022 08:45:10 PST
  • Moral Nuisance Abatement Statutes

    • Authors: Scott W. Stern
      Abstract: On May 19, 2021, Texas enacted S.B. 8—also known as the Texas Heartbeat Act—which prohibits almost any abortion of a fetus once a heartbeat can be detected, effectively banning abortions after only six weeks of pregnancy. Just as controversially, S.B. 8 also specifies that it is enforceable exclusively through private civil actions, and it allows any private person to sue anyone who “performs,” “induces,” or “knowingly . . . aids or abets the performance or inducement of an abortion,” seeking injunctive relief and statutory damages of $10,000 per violation. The passage of S.B. 8 immediately led to calls for, and predictions of, copycat laws. Within weeks, legislators in several states had indicated their intent to pass identical bills, while others warned that the law’s enforcement mechanism could be applied to a range of lawful activities, from gun possession to facilitation of same-sex marriage. Indeed, states have already passed laws enabling individuals to file suit against schools that teach “critical race theory” or refuse to exclude transgender students from bathrooms or athletics. Numerous legal scholars, judges, and commentators have decried this “unprecedented” enforcement mechanism, especially the creation of a private cause of action for uninjured individuals with no connection to the person seeking an abortion. Critics have likewise labeled as unprecedented the fact that S.B. 8 enables plaintiffs to file suit anywhere in Texas, denies defendants certain well-recognized affirmative defenses, compels losing defendants to pay plaintiffs’ fees and costs, and provides a “bounty” for successful plaintiffs.In fact, the only truly unprecedented aspect of S.B. 8 is that it entirely displaces public enforcement with private enforcement. Virtually every other part of its enforcement scheme—the deputization of uninjured private citizens, the broad venue provision, the creation of civil “bounties,” the disallowance of certain defenses, and the provision for plaintiffs’ fees and costs—enjoys ample precedent. Beginning in the nineteenth century and continuing throughout the twentieth, state legislatures across the country passed hundreds of laws enabling any private citizen, regardless of personal injury or interest, to bring suit to remedy a range of supposed social ills—from the sale of liquor to the sale of sex, from air and water pollution to the unlicensed practice of dentistry. Although these laws differed considerably, their hallmark was their empowerment of uninjured individuals to bypass state authorities and directly use the machinery of the courts to remedy something the legislature considered a harm to the public at large.In this Article, I argue that S.B. 8 is best understood as the latest of these laws, albeit taken to a new extreme in its foreclosure of any public enforcement. Drawing deeply on original archival research, this Article provides the first comprehensive history of these laws, which I call “moral nuisance abatement statutes.” The authors of these statutes took inspiration from the common law of public nuisance, but they eliminated its “special injury” requirement, instead allowing uninjured individuals to bring suit to abate so-called nuisances. Although citizen-suit provisions are common in state and federal statutes, moral nuisance abatement statutes go further than any other private enforcement schemes, not just by dispensing completely with the demand of injury but also by shifting burdens of proof, foreclosing common defenses, and providing financial incentives for plaintiffs—all in the name of more effectively attacking a supposed cancer on the commons. Moral nuisance abatement statutes—laws such as S.B. 8—are likely to spread. This Article thus historicizes these statutes, clarifying their past, claiming for them a significant present, and providing some clues to predict their future. The purpose of this analysis is not to minimize the real ways that S.B. 8 departs from earlier moral nuisance abatement statutes. Rather, its point is to identify these statutes as belonging to a common class, which better enables us to analyze their spread, impact, similarities, differences, and power.
      PubDate: Sun, 13 Nov 2022 08:45:06 PST
  • This Must Be Our Place: Protectionism and Foreign Investment in
           Kazakhstan’s Farmland

    • Authors: Kristi Lew
      PubDate: Mon, 24 Oct 2022 11:44:37 PDT
  • Winter is Here: The Impossibility of Schrems II for U.S.-Based
           Direct-to-Consumer Companies

    • Authors: Vanessa Zimmer
      Abstract: In this paper, Vanessa Zimmer exposes the precarious position of Direct-to-Consumer (DTC) companies that are physically located in the United States but still subject to the European General Data Protection Regulation (GDPR) under Article 3(2) because they offer goods or services to European consumers online. Standard Contractual Clauses (SCCs) and supplementary measures have dominated privacy conversions in the year since the European Court of Justice invalidated the EU-U.S. Privacy Shield framework with its Schrems II decision.However, Zimmer argues that the greater issue for U.S.-based DTC companies is the lack of clarity over what constitutes an international, or restricted, transfer under the GDPR in the first place. Is an international transfer any physical transfer of personal data from within the European Economic Area to outside its borders (the so-called “geographic” definition of international transfer) regardless of whether the foreign recipient is already directly subject to the GDPR' Or, is an international transfer only considered such if the recipient is located outside of the European Economic Area and not already directly subject to the GDPR (the so-called “jurisdictional” definition of international transfer)' Zimmer explains the rationale for each position and ultimately argues in favor of a jurisdictional definition of international transfers.The European Data Protection Board of the European Commission (the EDPB) and individual Member State supervisory authorities have repeatedly failed to define international transfers since the passage of the GDPR. This repeated failure to clarify the interplay between the territorial scope of the GDPR under Article 3(2) and the transfer restrictions of the GDPR under Chapter V has left U.S.-based DTC businesses uncertain of whether they are making international transfers under the GDPR and whether they must subsequently implement safeguards, such as SCCs, to protect those transfers.Zimmer explains how the Schrems II decision exposed the EDPB’s failure and exacerbated the already uncertain status of European personal data processing by U.S.-based DTC companies. The EDPB has further complicated the status of international transfers in its post-Schrems II guidance and its issuance of new SCCs for international transfers.Zimmer contends that it is vital for the sake of transatlantic trade and the continued integrity of the EDPB that the EDPB clearly defines international transfers and explains the applicability of transfer mechanisms to U.S.-based DTC companies.
      PubDate: Mon, 24 Oct 2022 11:44:36 PDT
  • Offshore Wind Development in the Great Lakes: Accessing Untapped Energy
           Potential Through International and Interstate Agreement to Overcome
           Public Trust Concerns

    • Authors: Jordan Farrell
      Abstract: Offshore wind energy development in the Great Lakes presents an immense opportunity for distributed generation of renewable energy; however, this potential has thus far remained untapped. One significant barrier to why there has not yet been such wind energy development in the Great Lakes is the public trust doctrine. This doctrine generally stands for the principle that a state cannot convey its submerged lands to a private party. However, there remains much legal uncertainty with regards to the doctrine. Courts and scholars have struggled to determine with any certainty the origins and grounding of the doctrine and the limits it places on states with regards to public trust lands. This uncertainty poses a barrier to wind energy developers, leaving projects open to legal challenges and, even if public trust scrutiny is overcome, significant delays.This article examines the general principles of the public trust doctrine and analyzes the public trust doctrine in each of the eight Great Lakes states. While the uncertainties and ambiguity of the doctrine cannot be resolved, based on this review there are two common exceptions that minimize public trust concerns and may allow private developments on public trust lands: (1) control or title remaining with the public; and (2) promotion of the public interest. This article argues that there is an opportunity to construct an international agreement between the United States and Canada, and a subsequent interstate compact between the eight Great Lakes states, to establish a structure for offshore wind energy transactions in the Great Lakes and to emphasize the public benefit therein. Such agreements have the potential to mitigate public trust uncertainty and litigation risk on wind energy developers seeking to harness the wind potential of the Great Lakes.
      PubDate: Mon, 24 Oct 2022 11:44:36 PDT
  • Bridging Separate Worlds— Application of Human Rights Law in
           Investment Treaty Arbitration

    • Authors: Raymond Yang Gao
      Abstract: With the proliferation of investor-state treaty arbitration, international investment law has been increasingly caught in a “legitimacy” crisis, with concerns looming large over resultant disruptive effects on human rights. Amid existing scholarship seeking to recalibrate the balance between investment protection and public interests, what is relatively undertheorized is a public international law dimension. In this regard, this Article explores the role of human rights law in integrating human rights considerations into investment tribunals’ decision-making, bridging the normative divide between international investment law and human rights. It makes three contributions. First, it systemizes the normative tensions and potential conflicts between international investment law and human rights, analyzing the primary manifestations and root causes thereof. Second, from the position of a respondent state, this Article typologizes the application of human rights law to investor-state treaty disputes, providing legal grounds to alleviate the potential conflicts between investment protection and human rights. In so doing, it also provides a clearer clarification of the relationship between international investment law and human rights law. Third, this Article evaluates the relative strengths and weaknesses of these human rights arguments, shedding light on how international investment agreements could be reformed to better balance investment protection with noneconomic issues.
      PubDate: Mon, 24 Oct 2022 11:44:35 PDT
  • The Rule of Recognition and Presidential Power

    • Authors: Austin Piatt
      Abstract: Professor H.L.A. Hart’s theory of the rule of recognition, introduced in 1961, asserts that every legal system requires a rule of recognition to tell society what the law is. Though much scholarship has been dedicated to analyzing America’s theoretical rule of recognition, Hart’s theory has not yet been applied to the numerous actions and operations of America’s Executive Branch. The rule of recognition should be able to tell us which executive actions have the authority of law. Yet, when we try to make sense of various recent orders, memos, guidance documents, and letters emanating from the White House and administrative agencies, the rule of recognition falls short of its purpose.This Note is the first to apply Hart’s theory to a sample of Executive Branch actions—including executive orders, “Dear Colleague” letters, and even Twitter—and derive lessons about Hart’s work from that application. By taking the rule of recognition out of the realm of theory and applying it to our modern reality, this Note raises important questions about our government and Hart’s theory. Is there something wrong with Executive Branch actions' Is there something wrong with Hart’s theory' Maybe it is failing to settle uncertainty as it was proffered to do. Or maybe this real-world application gives us reason to question Hart’s fundamental thesis. Addressing these questions will not only deepen our understanding of the law’s philosophical underpinnings but will also bolster our understanding of various government actions in the real world.
      PubDate: Sun, 09 Oct 2022 08:49:02 PDT
  • The Supreme Court Gets the Ball Rolling: NCAA v. Alston and Title IX

    • Authors: Arianna Banks
      Abstract: Student-athlete compensation has been a consistent topic of controversy over the past few years, as critics question the legitimacy of the NCAA’s notion of amateurism and proponents favor the status quo. The Supreme Court decision in NCAA v. Alston has only served to intensify the debate, opening the door to alternative compensation structures. Despite a unanimous ruling in favor of the athletes, the limited holding of the case has only produced further questions. In his scathing concurrence, Justice Kavanaugh raises one such question: how does a student-athlete compensation structure comply with Title IX' This Comment seeks to address that question by analyzing two possible compensation regimes and their compatibility with Title IX.
      PubDate: Sun, 09 Oct 2022 08:48:59 PDT
  • The Fourth Amendment and the Problem of Social Cost

    • Authors: Thomas P. Crocker
      Abstract: The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality—the precondition for exclusion or damages— itself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not' Taking a cue from Professor Ronald Coase’s famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what “social cost” entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize “social cost” seriously.Conceptions of social cost rely on choices of perspective and judgments about what counts as salient harms that necessitate a remedy. To date, the predominant perspective the Court takes in constructing and implementing Fourth Amendment doctrine is the policing perspective. This perspective is evident both when doctrine is applied to ordinary cases and when doctrine is shaped by using video evidence such as body-worn cameras that reinforces law enforcement’s perspective. The result of prioritizing a policing perspective is to focus on the harms produced by imposing the exclusionary rule or civil liability on law enforcement’s illegal acts, not upon the harms suffered by innocent individuals and broader communities. Such a narrow perspective is a problem because it constructs constitutional meaning in a way that excludes much of what scholars and the public take the Fourth Amendment to mean through the values it protects. Harms that flow from those citizens who are law enforcement officers—those empowered with the authority to search, arrest, employ violence, and use deadly force—that break the law may be particularly acute given the special role they play in political society. This Article articulates this concern as an inverted “broken- windows” analysis. Just as minor crime left unregulated within a community is said to produce greater social harm through the spread of lawlessness, minor illegality perpetrated by police left unregulated can produce greater social harm—with sometimes tragic effects—through police impunity. This latter possibility is insufficiently recognized in theory and practice. Through such internal criticism of Supreme Court doctrine, this Article begins from the Court’s own commitment to the analytic centrality of social cost when constructing the meaning of the Fourth Amendment through its exclusionary-rule and qualified-immunity doctrines and proposes additional perspectives necessary for more accurate calculations designed to protect constitutional rights and promote political community.
      PubDate: Sun, 09 Oct 2022 08:48:56 PDT
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