ASULJADMIN

Carissa Byrne Hessick. Courts have construed the right to due process to prohibit vague criminal statutes. Vague statutes fail to give sufficient notice, lead to arbitrary and discriminatory enforcement, and represent an unwarranted delegation to law enforcement. But these concerns are hardly limited to prosecutions under vague statutes. The modern expansion of criminal codes and broad deference to prosecutorial discretion imperil the same principles that the vagueness doctrine was designed to protect. As this Essay explains, there is no reason to limit the protection of these principles to vague statutes. Courts should instead revisit current doctrines which regularly permit insufficient notice, arbitrary and discriminatory enforcement, and unwarranted delegations in the enforcement of non-vague criminal laws. Full Article

Michael D. Guttentag. This article, a contribution to a symposium celebrating the twentieth anniversary of the Society for Evolutionary Analysis in Law, applies evolutionary analysis to the study of disclosure regulation. I consider how an evolutionary perspective can improve our understanding of when and how to use disclosure requirements to regulate social activity. I. INTRODUCTION Evolutionary analysis in law offers both promise and peril. The promise comes from its unique ability to answer “Why?” questions about human behavior. If we can explain why a behavior occurs, then it should be easier to predict and explore the contours and intensity of that behavior and, perhaps, better understand how to modify that behavior, if need be. This is the promise of evolutionary analysis in law. Full Article

Betsy J. Grey. Courts traditionally have been reluctant to admit PTSD evidence in rape cases. Prosecutors often attempt to introduce such evidence to establish that the victim did not consent to the sexual contact, but courts have been concerned that the jury will improperly use the evidence for other purposes, such as proof that the rape occurred. This essay questions whether judicial hostility to PTSD evidence should be reconsidered, given how science is developing biological markers, or objective physiological measures, of PTSD. It concludes that, even with these scientific developments, courts should remain skeptical about admitting PTSD evidence. The main concern persists that PTSD evidence may be overly persuasive in suggesting that rape was the stressor that caused the psychiatric disorder. Nor does use of biomarkers eliminate the vouching problem…

Mark W. Bennett. Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWJW—“what would jurors want”—a jury-centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings…

Clay Calvert. Using the U.S. Supreme Court’s 2015 opinion in Williams-Yulee v. Florida Bar as an analytical springboard, this Article examines the slipperiness—and sometimes fatalness—of the underinclusiveness doctrine in First Amendment free-speech jurisprudence. The doctrine allows lawmakers, at least in some instances, to take incremental, step-by-step measures to address harms caused by speech, rather than requiring an all-out, blanket-coverage approach. Yet, if the legislative tack taken is too small to ameliorate the harm that animates a state’s alleged regulatory interest, it could doom the statute for failing to directly advance it. In brief, the doctrine of underinclusivity requires lawmakers to thread a very fine needle’s eye between too little and too much regulation when drafting statutes. This Article argues that while Williams-Yulee attempts to better define underinclusivity, its subjectivity remains…

Derek Flint. The picnic was probably supposed to be an opportunity for the employees of the U.S. parent company to socialize with their counterparts in the Mexican subsidiary. The picnic’s planners likely imagined an afternoon of good, clean fun in Mexico with employees enjoying each other’s company as cold beverages flowed and office formalities slipped away. On this particular afternoon, however, events took a turn for the worse. An executive of the U.S. parent company demanded that 118 female employees of the Mexican subsidiary hold a bikini show, which the executive videotaped. Full Article

Jill I. Goldenziel. How does international law protect migrants? For the most part, it does not. Of the millions of people who flee persecution, conflict, and poverty each year, international law protects only refugees: those who flee persecution on the basis of religion, race, nationality, political opinion, or membership in a particular social group. The 1951 Convention Relating to the Status of Refugees provides critical protections for minorities that must never be diluted. However, it is insufficient to protect the swarms of migrants landing on the shores of Europe and elsewhere, or to guide states on how to protect them while guarding their own security. This Article argues that states have always revised international law regarding displaced people to protect their own security interests and changing circumstances of displacement. The…

Daniel Kolomitz. Disasters such as Fukushima, Three Mile Island, and Chernobyl have raised public awareness of the dangers of nuclear energy. However, despite this risk, nuclear energy supplies twenty percent of the electricity in the United States. Much of this development is due to the Price-Anderson Act (“PAA”). If a nuclear plant exposes a citizen to dangerous radiation that makes the citizen ill or damages his property, the PAA assures that a federal forum will be available to hear the victim’s claim, provides government funds to assure the victim’s compensation, and gives indemnification to the nuclear operator so that it is not exposed to crushing liability. The PAA only applies to “nuclear incidents”: specific types of damages caused by nuclear sources. If any lawsuit alleges that a nuclear incident occurred,…

Tamara Rice Lave. This Article looks critically at the procedural protections American universities give students accused of sexual assault. It begins by situating these policies historically, providing background to Title IX and the different guidelines promulgated by the Department of Education. Next, it presents original research on the procedural protections provided by the fifty flagship state universities. In October 2014, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof, right to an adjudicatory hearing, right to confront and cross examine witnesses, right to counsel, right to silence, and right to appeal. This Article describes findings and then compares them with prior studies. After arguing that state university students are entitled to procedural due process, this Article uses the…

Catherine A. O’Neill. Back in 1973, the tuna industry wanted to know how much fish Americans were eating. After asking 7,662 households to record their daily fish intake, the answer came back: people ate fish, but not very often—about once a month. While tuna purveyors mulled what to do with this information, the U.S. Environmental Protection Agency (EPA) borrowed their dataset. EPA used these data to derive a key variable in the equation for calculating people’s exposure to toxic contaminants in the nation’s waters: the fish consumption rate (FCR). This FCR served as the premise for EPA’s initial volley of water quality criteria in 1980 and, subsequently, for water quality standards across the nation. Even today, several states’ water quality standards are based on this FCR, which assumes that people…