Volume 58

Requiring Written Bail Determinations

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MICHAEL L. SMITH

Many states’ laws governing bail and pretrial release give the impression that courts think through a myriad of factors when deciding whether to set bail. But things often don’t work out this way in practice. Judicial officers setting bail carry out assembly-line-style, truncated hearings which often result in the imposition of bail in accordance with predetermined offense-based schedules. As a result, many defendants are ordered incarcerated pending further proceedings solely because they are unable to pay. Many of these defendants then plead guilty out of a desire to avoid remaining in jail pending trial.

This Article makes a straightforward proposal: written justifications should be required for all bail and pretrial release rulings that do not order defendants released on their own recognizance. By forcing courts to commit to writing the reasons behind their rulings, this reform pushes them to engage with the relevant laws governing bail and the circumstances of the defendants before them. It also increases the legitimacy of a system that badly needs it by creating a record of explanations for pretrial release determinations and acknowledging the need to spend time on these serious proceedings.

Critics are likely to paint this proposal as hopelessly impractical. Courts address millions of criminal cases each year, and requiring written rulings on pretrial release in many of them is a substantial burden. But this is not a problem with the proposal. Instead, this objection derives its force from a system that prosecutes more people than it possibly can while complying with minimal standards of due process and reasoned justifications. Requiring written bail determinations simply surfaces this defect. But, in doing so, the reform acts to oppose existing incentives that perpetuate overenforcement and oppressive prosecution. Alongside alternate reform measures, requiring written bail justifications is a step toward aligning pretrial release practices with the law on the books, and reducing the harms it causes to defendants, their families, and the rest of society.

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Probabilistic Tort Law: Extending the Loss-of-Chance Doctrine’s Partial-Damages Framework to All Tort Cases (and Beyond)

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MICHAEL PRESSMAN

Tort law’s loss-of-chance doctrine (“LOCD”) is employed in many jurisdictions to resolve a problem arising in certain medical malpractice cases. In the paradigmatic case, the patient presents with a greater-than-50% chance of dying from a condition, the doctor’s negligence increases that chance, and the patient dies. Traditionally, the plaintiff would never recover because he cannot show by a preponderance that he would have survived absent the negligence. The LOCD, however, allows for partial damages reflecting the portion of the risk attributable to the negligence. As most commentators agree, the LOCD furthers both fairness and efficiency, and all jurisdictions should employ it.

But this Article argues that we should go much further. The rationales underlying the LOCD apply not only in the typical LOCD context, but in all tort cases. Accordingly, this Article advocates for two reforms: first, employing the LOCD not only in medical malpractice cases that call for its use, but also in cases raising relevantly similar issues in any other area of tort (most notably, in toxic torts and products liability); and second, employing LOCD-like partial damages to take into account underlying risk even in cases in which the underlying risk is not large enough to create the insurmountable hurdle. The first reform increases recoveries (awarding partial damages instead of no damages); the second decreases recoveries (awarding partial damages instead of full damages).

These proposals are important for three reasons: First: Both further both fairness and efficiency, and their practical effects are significant for parties affected by them. Second: Although the general rationale for the LOCD is clear, and despite commentators agreeing that it should be limited to typical LOCD cases, there is no plausible account of (or consensus on) why it should be limited to these cases—which is why many courts have rejected the LOCD. This Article solves this problem: Not only do we not need to limit the LOCD, but we should not. Accordingly, this Article provides a broad foundational account of the LOCD that, unlike past accounts, is plausible—thus also providing reasons for courts to employ it even in typical LOCD cases. Third: While the Article’s reforms constitute a crucial step for tort doctrine in taking chance seriously, they will also serve as a blueprint for analogous reforms in other areas of the law.

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Stress and Prosecutorial Discretion

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JANE MITCHELL

Prosecutors wield enormous influence—and yet the factors guiding their choices remain largely unknown. Scholars have long considered the inner workings of prosecutorial discretion a “black box.”

This study seeks to remedy that gap by applying a discovery-based qualitative methodology to study prosecutorial discretion. Relying on fourteen in-depth interviews with prosecutors,* this study identifies an influence on prosecutorial discretion
previously unaccounted for in the literature: stress. Prosecutors’ stress responses directly impact their decision-making and performance, for better or for worse.

Prosecutors’ stress responses align with the principles of cognitive appraisal theory. According to this psychological theory, people “appraise” stressful situations as either “challenges” or “threats.” Each mental state triggers a distinctive set of
cognitive, emotional, and physical responses. Challenge states improve performance and thinking. Threat states impair performance and decision-making.

The interview data demonstrates that prosecutors face a relentless stream of stressors at work. The way prosecutors respond to those stressors carries profound implications for criminal justice. Prosecutors operating in challenge states benefit
from sharper decision-making and improved performance. Prosecutors in threat states, on the other hand, are more prone to negative bias, mistakes, abrasive behavior, and burnout. This has particular relevance for trial work, which prosecutors report being the most stressful part of their job: threat states predispose prosecutors to plead cases instead of going to trial.

While stress responses occur at an individual level, much can be done at an organizational level to promote challenge instead of threat. The Article concludes with structural recommendations for facilitating challenge states.

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What Does the Declaration of Independence Declare?

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STEVEN WILF

What does the Declaration of Independence declare? The simplest answer is that it constituted the United States as an independent sovereign nation. This brief Essay will take a different approach, focusing less on establishing sovereignty and
more on its fashioning the bonds of association that stand independent of legal governance.

One goal of this Essay, on the eve of its 250th anniversary, is to reinvigorate the meaning of the Declaration of Independence. If the Declaration was less significant as a legal instrument declaring sovereignty, then we must be even more
determined in understanding its meaning. How does one read a document in a fresh fashion when it has been scrutinized for so many years? Over time, documents become dusty, overly familiar, and, perhaps worst of all, sacrosanct. No doubt this
is true of the Declaration of Independence—which is often paired with the Federalist Papers as canonized handmaids to the Constitution. This ever-so-brief Essay aims to constitute ourselves as a new, unexpected audience for the text.

This Essay sees the Declaration as an untidy pastiche, a bricolage that is directed to any number of contemporary listeners; with its multiple audiences, shifting rhetorical styles, and different genres, the Declaration of Independence must be seen as a multivocal text. It also argues that the Declaration’s crescendo lies at the end, not the famous lines at the beginning, of the document. All the seemingly unrelated grievances are wrapped around a fundamental shift where it is not a new state that is founded, but rather it is an assumption of mutual duties among Americans that leads to a new social order—if not a new regime—and that this has binding force, as does any legal promise.

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What’s the Gig? Exploring the Scope of Employment Among Gig Economy Workers

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IAN A. RUSSELL

Work is a universal human experience, but the nature of work and the relationships between workers and employers have changed dramatically in recent years, thanks in large part to the rise of the “gig economy.” Gig workers on platforms like Uber, Lyft, DoorDash, Grubhub, and many others enjoy a degree of flexibility and autonomy, but that same autonomy helps to shield their employers from legal liability when workers cause harm to others.

This Comment explores the doctrine of respondeat superior and specifically the “control test” in the context of the gig economy. Because gig work is not bound by specific time and space requirements in the same way as traditional employment, and because gig workers often have multiple “gigs” simultaneously, it is often difficult to determine whether a tort is committed within the scope of employment. This Comment proposes using the “scope of the gig” as the key to unlock vicarious liability: if the worker’s intent was, at least in part, to complete the gig, then the gig
employer can be held legally responsible for the harm caused.

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“Chipping Away” at Chip Smith: Reforming Anti- Deadlock Instructions

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SAMANTHA G. CRONE

A jury “hangs” or results in impasse or deadlock when the jury cannot reach a unanimous verdict. This results in the judge declaring a mistrial, where the double jeopardy bar is lifted in criminal trials, and the defendant may be retried. Oftentimes, jury deadlock results from a majority voting block who cannot sway a lone dissenter, also known as the “holdout juror.” When faced with the potential of deadlock, judges across the country routinely administer an impasse charge, commonly known as a “Dynamite Charge,” for its ability to blast a jury out of deadlock and into a unanimous verdict.

With the United States Supreme Court silent on the charge in recent years, some jurisdictions have abandoned the charge altogether or reformed the language of the charge administered to omit coercive language of “minority” and “majority” or “dissenting” jurors. Connecticut’s “Chip Smith” Charge has been consistently upheld by the Connecticut Supreme Court and is considered settled jurisprudence. Despite many criminal defendants arguing to end the practice of administering the charge, the court has declined to do so. Though the state’s courts have, in recent
years, altered the language of the model charge to include “balancing principles” to counteract the language targeting “dissenting” jurors, judicial discretion looms large in this area, and there are few checks on a trial judge’s ability to tell dissenting jurors to reconsider their view. Because the demise of Chip Smith is highly unlikely, this Comment argues instead that Connecticut should take a more middle ground approach and constrain judicial discretion in this area by limiting the number of times the charge may be read to a jury, eliminating the pressure placed on dissent,
and establishing a higher degree of judicial scrutiny when a trial judge strays from approved language. These changes will help protect a criminal defendant’s due process right to an uncoerced jury verdict.

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Pimps, Priors, and Propensity

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BRYAN SCHWARTZ

Sex trafficking is the “fastest-growing business of organized crime” and “the third-largest criminal enterprise in the world,” with the number of cases in the United States steadily increasing over the last two decades. In fact, sex trafficking recently took center stage when rap singer and music producer Sean “Diddy” Combs was arrested and charged, in part, with sex trafficking. Relevant to this Article, the lawyers for both sides brought forth motions challenging the admissibly of character evidence under both Federal Rule of Evidence 404(b) and 413.

In the context of sex trafficking, this Article builds on the existing scholarship analyzing character evidence, particularly Rule 404(b). Notably, sex trafficking often follows a typical framework, which this Article lays out in three parts: Victim Selection, the Grooming Process, and the method of Operation. These parts also contribute to complex dynamics between the offender and the victim, which greatly impact the investigation and prosecution of these cases. Importantly, as this Article sets forth, courts do not appear to be uniformly aware of this framework,
particularly when evaluating character evidence. Thus, this Article sets forth a sex trafficking framework to be used by courts, lawyers, and lawmakers, which will result in improved consistency and predictability when evaluating the admissibility of character evidence.

Additionally, this Article also aims to start the controversial conversation of whether propensity evidence should be admissible in sex trafficking cases, such as by expanding Rules 413, 414, and 415 (“the propensity rules”). While additional contributions are necessary to answer this question, this Article lays the initial foundation by setting forth the scholarly debate surrounding propensity evidence, focusing on the important concerns that propensity evidence inherently possesses, balanced against recent studies relying on forensic psychology theory suggesting
its evidentiary value in sex trafficking cases.

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I Do Not to Un-Do: The Constitutionality of Voluntary Limits on Marital Exit

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KARIN CARMIT YEFET

American divorce law in the twenty-first century stands on the brink of a troubling paradigmatic shift. States have begun to experiment anew with divorce-restrictive regimes, most prominently covenant marriage. This singular antidivorce mechanism—the first of its kind worldwide—establishes an optional marital framework in which exit is severely constrained. Despite a voluminous literature examining covenant marriage through sociological, theological, policy, and legal lenses, its constitutional validity has been all but ignored. This Article argues that marital freedom is an unenumerated fundamental right within the American constitutional edifice and explores the implications of that right for this novel divorce regime. It pioneers the constitutional analysis of exit barriers—whether imposed by covenant legislation or contractual stipulation—and finds them indefensible. It then confronts covenant marriage’s most radical innovation: the purported permissibility of voluntary limits on marital exit. Grounded in theories of inalienability, the Article establishes that the core right to divorce lies beyond the reach of waiver and concludes that this recognition calls into question the very legitimacy of the covenant marriage regime.

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A Citizenship Model of the Fourth Amendment

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DANIELI EVANS

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for Fourth Amendment law, centered not around privacy or private law, but around the value of democratic citizenship. I argue that the prevailing Fourth Amendment rules and proposed private law alternatives are both deficient in one important respect: they both fail to recognize and address the ways in which policing impacts democratic citizenship. A large body of social science research shows that coercive encounters with police tend to diminish people’s trust in government, sense of citizenship, and political participation. These citizenship harms, I argue, ought to be a central concern for Fourth Amendment law. This is necessary to realize the  Fourteenth Amendment’s guarantee of full and equal citizenship.

Under a citizenship model, when deciding whether an action is an unreasonable search or seizure, courts would consider what the action conveys about the subject’s belonging and standing in the community. To evaluate this, courts would ask how the action comports with values associated with democratic citizenship, such as participation, autonomy, anti-subordination, and proportionality.

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What We Are Owed

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REBECCA E. WOLITZ

Historically, the United States has been the largest public funder of biomedical innovation in the world, yet public contributions to drug research and development (“R&D”) often fail to translate into affordable medications. The Inflation Reduction Act presents an opportunity to reconsider the relationship between public funding and public returns by requiring the consideration of federal funding as a factor in the Medicare Drug Price Negotiation Program (“MDPNP”). However, neither the statute nor agency guidance articulate clear normative principles for what the public is owed based on our contributions to drug R&D. This Article makes two key contributions. First, it offers an original scholarly analysis of the MDPNP’s “prior Federal financial support” factor, critically examining the program’s treatment of federal funding in fair drug pricing. Second, it  valuates a range of fairness principles and argues that policymakers should adopt a principle of proportionality as the default for allocating benefits from public contributions to drug R&D. By establishing a default in favor of proportional fairness, this approach ensures that public returns are meaningfully aligned with public contributions, flexibility is maintained to protect biomedical innovation, public confidence in institutions can be bolstered, and what we—the public—are owed is better secured. This Article charts a path toward a more equitable and accountable recognition of public contributions to privatized medical innovations within existing agency authority.

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