In the annual IJA Brennan Lecture, Justice Melissa Hart of the Colorado Supreme Court and Doctor Kirsten Winek explore how American legal institutions could better prepare law students to meet the shortage of legal services available to many communities.
Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This Article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?
Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from their initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of a case, from preliminary hearings to pretrial conferences to trials. The preference for vertical representation stems from the intuitive belief that continuity of representation improves outcomes for defendants. However, no prior empirical work has tested this assumption.
Using a natural experiment created by the Defender Association of Philadelphia’s transition from a fully horizontal representation system to a partially vertical one, we f ind no evidence that increasing attorney continuity through a vertical representation system improves defendant outcomes.
These findings have significant implications for how public defender offices should allocate their scarce resources. While vertical representation is considered by many to be the ideal, our results cast doubt on whether the additional resources and logistical challenges relative to horizontal representation are justified given the current reality of underfunded public defense. As jurisdictions nationwide grapple with a chronic lack of resources for public defense, this article provides crucial empirical evidence to inform decisions about how best to uphold defendants’ Sixth Amendment right to counsel.
Fast-growing startups in search of capital and liquidity have traditionally sought to exit the private capital market through M&A or IPO. Until recently, antitrust enforcers rarely challenged startup acquisitions. But under the Biden administration, enforcers worried about the growing dominance of Big Tech sued to block more startup deals. Since antitrust restricts M&A but not IPOs, one might expect that greater antitrust enforcement would cause startups to substitute one kind of exit for another, leading to more IPOs. That did not happen. While M&A and IPOs both provide liquidity, they are not perfect substitutes. We model heterogeneity in M&A and IPO pricing to explore how increased antitrust enforcement impacts venture capital. Economies of scale and scope, synergies, regulatory costs, market power, and market cyclicality can cause IPO valuations to fall significantly below M&A prices. And heightened antitrust scrutiny can reduce the value of an IPO by undermining one of its main advantages: access to publicly traded equity that can be used as currency for future acquisitions.
In this Article, we show how startups have responded to the antitrust crackdown not by choosing a different exit but by choosing no exit. Startups are easing liquidity pressure by letting employees cash out their shares in tender offers. Venture capitalists are extending their exit horizons by forming continuation funds. Would-be acquirers have developed new structures to evade antitrust law, such as the centaur—a private company funded by public company cash flows—and the reverse acquihire—a mass employee exodus from a startup to a public tech company, coupled with a cloaked payoff to the startup’s investors. We explain the implications of these changes for competition policy, capital formation, and the continuing erosion of transparency into socially important businesses.
Today, civilians can participate in war as never before. Through smartphones and the internet, civilians can now contribute directly to military operations, whether they are in an active conflict zone or on the other side of the globe. A civilian can, for example, use an app to help military forces intercept threats, join a virtual network of volunteers that conduct cyberoperations against a party to an armed conflict, or use a crowdfunding site to donate funds to provide weapons to combatants. We call this revolution in war fighting “Crowdsourced War.” This Article identifies this growing phenomenon, demonstrates how it creates extraordinary new risks for civilians, and recommends critical steps that States like the United States must take to address those risks.
In the wake of the September 11, 2001, attacks on the United States, new interpretations of the law governing armed conflict took shape. Applying these new interpretations to Crowdsourced War, this Article shows how civilians today may unknowingly forfeit their protected status and be regarded as legitimate military objectives under international law. Civilians participating in Crowdsourced War not only unwittingly endanger themselves, they also endanger civilians living and working alongside them. The spread of Crowdsourced War can also lead combatants to suspect all civilians of being participants in war—and thus lawful targets.
To address these problems, we argue it is time to adopt new rules for Crowdsourced War. States, including the United States, should revisit broad interpretations of the law first adopted for a different kind of conflict—interpretations that now make vast numbers of civilians newly vulnerable. States must also take greater responsibility when they invite civilians to participate in Crowdsourced War, including by ensuring that they do not put civilians at unnecessary risk and by informing them of the consequences they may face. Finally, international humanitarian law must be revised to account for this sea change in the way wars are fought. The International Committee for the Red Cross, together with States like the United States that are committed to the rule of law, should renew efforts to tighten standards for targeting civilians. This is necessary to ensure that the era of Crowdsourced War does not become the era in which the distinction between civilian and combatant completely evaporates.
Nearly sixty years after the passage of the Fair Housing Act (FHA), racial segregation, housing discrimination, and consequent disparities in health and opportunity stubbornly persist. Yet the Department of Housing and Urban Development has made limited use of the FHA’s most powerful provision: its mandate to affirmatively further fair housing. In recent years, new barriers to meeting this mandate emerged. Still, affirmatively furthering fair housing remains constitutionally viable and urgently necessary, even in the face of shifting equal protection doctrine. This Note begins by tracing the contested meaning of “affirmatively furthering fair housing” in the courts and executive branch. It then examines how Students for Fair Admissions v. Harvard creates new constitutional roadblocks to governments seeking to affirmatively further fair housing today. In response, this Note proposes a process for crafting race-conscious policy within the many constraints of current equal protection jurisprudence. Finally, it outlines an application of this process to affirmatively furthering fair housing. By doing so, this Note reaffirms the continued need for affirmatively furthering fair housing, the continued possibility of this work in the face of constitutional changes, and specific avenues forward for state and federal actors dedicated to building “truly integrated and balanced living patterns.”
Flawed software costs businesses and consumers millions of dollars every year, but existing tort law does not generally require developers to compensate others for economic injuries caused by bad code. Discontented scholars and policy analysts have produced an array of proposals that would force developers to pay for harms flowing from vulnerabilities that hackers exploit to injure software users. This basic model—which would impose a duty on developers to eliminate security-related vulnerabilities but not other types of software flaws—dominates legislative and academic debates about reform. This Note argues that this focus is misconceived. It is technically ambiguous, doctrinally anomalous, and would throw national security and consumer welfare goals into conflict. Liability proponents have focused on it because they recognize that imposing new duties on software developers must realistically be limited in some way. Although the vulnerability-based limitation is ultimately misguided, this Note proposes that a party-based limitation restricting recovery to parties in near-privity is more defensible. Focusing on party-based limitations on duty instead of a vulnerability-based limitation would require thinking of software development not as a product, but rather as a professional practice subject to malpractice-like standards. This reframing, I argue, better aligns proposals for expanding software developers’ duties with existing tort doctrine while focusing a liability evaluation on the most important aspects of the software development process.
In January 2024, the United States made landmark regulatory updates under the Native American Graves Protection and Repatriation Act (NAGPRA) amidst intensifying scrutiny on human remains stewardship and calls for repatriation. Museums across the United States and United Kingdom currently hold hundreds of thousands of human remains in their collections, many of which were acquired through colonial exploitation, thefts of cultural heritage, grave robbing, and other unethical acquisitions from marginalized communities. The dark history of these collections and their perpetuation of harm to marginalized communities necessitates improved mechanisms for human remains repatriation.
This Note examines the current state of museum human remains policies and makes the case for improved regulations and social sanctions. Museums across the United States and United Kingdom implement a wide range of policies for human remains stewardship, and the analysis of four key case studies—the American Museum of Natural History, the Denver Museum of Nature and Science, the British Museum, and the Manchester Museum—demonstrates the need for interventions to facilitate the return of human remains. Specifically, the learnings from these case studies highlight the need for public pressure and improved regulations that carry concrete mandates, are enforced, and address key regulatory gaps.
Unpaid internships in the federal government operate under a statutory and regulatory regime unlike any other in American employment law. The Fair Labor Standards Act (FLSA) constrains internships that are hosted by nonfederal entities. The FLSA applies to the United States as an employer, but in practice, it has proven almost entirely irrelevant to federal unpaid internships, which instead owe their form to the interaction of appropriations law, the Antideficiency Act’s voluntary service prohibition, and 5 U.S.C. § 3111, which authorizes “student volunteer” service at federal agencies under strict, enumerated conditions.
This Note—the first comprehensive doctrinal and statutory account of federal unpaid internships—argues that the federal government’s legal authority to host unpaid interns is both narrower and more rigid than commonly understood. The Note first contextualizes federal “student volunteer” programs within the broader economy of unpaid internships, tracing the evolution of these programs and identifying how education-based exceptions have redefined the permissible boundaries of intern labor. It then turns to the federal sector, where legal authority to accept voluntary service depends on a statutory scheme that expressly bars compensation and classifies interns as non-employees for nearly all legal purposes. The Note synthesizes this landscape into a clear legal test for when unpaid internships in federal agencies are lawful.
Yet even lawful unpaid internships present profound problems. This Note identifies structural inequities, legal accountability gaps, and governance blind spots that arise when federal agencies rely on unpaid student labor. Because these issues are entrenched in federal statute, they are impervious to litigation or state-based reform. Accordingly, this Note concludes with legislative solutions to fix a Congressionally created quagmire that only Congress can properly fix.
