Volume 2022, No. 3

PDF link Table of Contents


PDF link Foreword: Willard Hurst’s Unpublished Manuscript on Law, Technology, and Regulation

by BJ Ard & William J. Novak

In a document that we believe is among Hurst’s earliest substantive histories (and now over seventy years old), we can see the very beginnings of the distinctive approach to legal studies that would shape legal history and law and society for generations to come. With slight stylistic and typographical changes, we present the manuscript as we found it—as a complete and carefully hand-edited final document with endnotes in the bibliographic style that Hurst utilized early in his career.

PDF link Chapter Eight—Technology and the Law: The Automobile

by James Willard Hurst

In this chapter we are going to talk about some of the effects that the automobile has had upon the law and some of the effects that the law had upon the automobile. We could undoubtedly open up some worthwhile lines of thought if we talked about the automobile in relation to certain broader problems of which it is a part: for example, the effects of the internal combustion engine or the growth of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of this chapter we can discuss at any length only the relation of the law and the passenger car. This is not merely an arbitrary limitation, however. Of the 32 million registered motor vehicles in the United States in 1940, substantially over 27 million were passenger cars, and a little under four and one-half million were motor trucks. Until the middle 1920s the proportion of trucks to passenger cars was much lower than this. Not only was the passenger car the center of the auto problem as a matter of gross figures; it was likewise the main aspect of the problem that men saw and reacted to. We may properly focus on it when we try to retrace the unplanned paths of the law’s responses to the motor vehicle.


PDF link Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence

by Keith A. Findley, Maria Camila Angulo Amaya, Gibson Hatch, & John P. Smith

Critics of plea bargaining have long contended that it has an innocence problem—that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty. While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining’s innocence problem.

Drawing on original empirical data, this Article begins to fill that void. Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases use their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high. We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals. To address these questions, we collected a wide range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010 to 2020.

PDF link Bloody Lucre: Carceral Labor and Prison Profit

by Laura I Appleman

The pursuit of profit is inextricably intertwined with America’s system of carceral labor and criminal punishment. Along with the institution of slavery, the harnessing of involuntary carceral labor yielded enormous proceeds through the transformation of human toil into financial gain. Profit incentives have exerted a profound influence on the shape of American carceral labor. From sixteenth-century British convict transportation to twenty- first-century private corrections companies, profitable returns from involuntary carceral servitude have been an important feature of criminal punishment.

This Article traces the coruscating power of the private profit motive within the criminal justice system, one of the first to chart the ways this focus on revenues has shaped the forced toil of those under correctional control. By thoroughly evaluating our carceral history and dissecting the financial currents that have shaped the many forms of involuntary inmate servitude, we will be better able to disentangle how money has influenced and warped our system into one of mass incarceration. A full understanding of our carceral past could help us begin to rechart the course of modern criminal justice, eliminating this kind of involuntary servitude in our system.

PDF link Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance

by Jacob T. Elberg

This Article is the third in a series analyzing civil FCA resolutions, looking not only at DOJ’s stated policies but also at actual outcomes through review of a data set of resolved cases against health care entities. Until now, those analyzing the extent of benefits for corporate compliance programs have focused on criminal cases, particularly those under the Foreign Corrupt Practices Act, and have focused primarily on the potential for a compliance defense to criminal liability. Surprisingly, the literature has to date failed to analyze this question in the context of the FCA, and thus the health care industry, despite its supremacy as a DOJ enforcement target and despite the fact that the FCA’s mens rea standard is more likely to sweep in cases in which applying a compliance benefit would further DOJ’s enforcement goals.

PDF link The Constitutionalization of Medical Malpractice in the Seventh Circuit

by Brad Taylor

The tortious act of providing inadequate medical care may be a source of civil liability in several ways, depending on the context and setting in which the inadequate care was provided. If the inadequate medical care was administered to a state or federal prisoner, that prisoner might have a valid claim under both a state medical malpractice law2 and the Eighth Amendment to the U.S. Constitution. Alternatively, a healthcare professional treating a pretrial detainee may be liable for medical malpractice and for an impermissible deprivation under the Fourteenth Amendment Due Process Clause. The multiple causes of action, however, are based on separate and distinct legal theories. Medical malpractice sounds in negligence, while an Eighth Amendment claim is reserved for deliberate indifference amounting to the “unnecessary and wanton infliction of pain.” As the Supreme Court made clear in Farmer v. Brennan, the Estelle Court intentionally described the standard as deliberate indifference in order to distinguish it from common negligence. Similarly, the standard for proving a Fourteenth Amendment violation requires a greater showing than mere negligence. Besides the legal jargon separating the causes of action, what is the practical distinction between constitutional claims of inadequate medical care and medical malpractice?

PDF link The Return of the Jury: Conduct-Based Sentencing for Recidivism

by Jennifer Lee Barrow

Under current law, people charged under recidivist statutes are not entitled to have a jury assess their prior convictions. But the fact of a prior conviction should be proved to a jury beyond a reasonable doubt. This change would allow courts to use a conduct-based approach instead of a categorical approach while still complying with the Sixth Amendment.

When applying recidivist statutes such as the Armed Career Criminal Act (ACCA), the Supreme Court requires that courts use “a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” The categorical approach bewilders judges, clogs court dockets, and frustrates the goals underlying recidivist statutes, such as consistency, deterrence, and incapacitation of the most dangerous criminals.

This Article builds on scholarship that evaluates alternatives to the categorical approach and explains why a conduct-based approach—focusing on the real-world facts of the prior offense—adjudicated by juries using a reasonable doubt standard is a better approach to recidivist, mandatory- minimum statutes such as the ACCA.