Iowa Law Review

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Latest documents

• Cause and Effect in Antidiscrimination Law

  Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to serve their objectives effectively. This Article proposes a theory and method of causation that achieves this goal. The problem stems from the inadequacies associated with current standards of causation in disparate-treatment cases—the but-for test and the motivatingfactor test. The proposed “factorial” approach introduces a causal standard that addresses these inadequacies. It entails three innovations over current causation schemes: (1) it adopts a predominant framework for cause and effect in the sciences, called the “potential-outcomes” framework, as a central structure in which to sharply define and analyze the causal inquiry; (2) it employs a causal measure, called the “NESS” test, that refines and, in a sense, unifies the but-for and motivating-factor tests by retaining the central feature of the but-for test—the “necessity condition”—but in a less restrictive form; and (3) it applies a legal framework grounded in tort law and recent advances regarding multiple sufficient causes. In addition to reflecting actual cause and effect, the proposed approach promotes antidiscrimination law’s deterrence and fairness objectives, and it allows an interpretation of causal language in antidiscrimination statutes that is consistent with good policy and Congress’s intent—an interpretation not possible under current standards

• Structural Sensor Surveillance

  City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart city structural design as a way to rethink current Fourth Amendment theory. This Article examines the Fourth Amendment search questions that may render structural surveillance unconstitutional, and then offers a legal and practical design solution. The Article argues that Fourth Amendment principles must be built into the blueprints of urban design. At a micro-level, privacy rules must be embedded alongside data collection rules. At a macro-level, a comprehensive legal framework must be integrated with digital design choices. Only by thinking about municipal code and computer code simultaneously can smart cities avoid emerging Fourth Amendment challenges

• Structuring the Public Defender

  While the public defender is critical to protecting individual rights in the U.S. criminal process, state governments take remarkably different approaches to distributing public defense services. Some states organize indigent defense as a function of the executive branch of state governance; others administer indigent defense through the judicial branch. The remaining state governments do not place the public defender within any branch of state government, instead delegating its management to local counties. This administrative choice has important implications for the public defender's efficiency and effectiveness. It influences how the service will be funded and the extent to which the public defender, as an institution, will respond to the particular interests of its local community. So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government overseeing both the prosecutor and police—two entities the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch—although this branch is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender that is independent of statewide governance is ideal, even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources. This Article answers the question of state assignment by engaging in an original examination of each state's architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender and how that decision influences the institution's funding and ability to adhere to ethical and professional mandates. It concludes the public defender should be an important executive function in this modern era of mass criminalization and articulates modifications that would improve such a state design by insulating it from pressure by other system actors

• A Defendant's Ability to Pay: The Key to Unlocking the Door of Restitution Debt

  This Note argues that state legislatures should create statutory frameworks that permit judges to consider a defendant's ability to pay when determining the total amount of criminal restitution that should be ordered. Considering ability to pay before ordering restitution still accomplishes the goals of restitution while potentially increasing collection rates and managing victims' expectations. Further, this Note argues that judges should be able to consider a defendant's financial resources and ability to pay at subsequent proceedings in order to modify the defendant's restitution plan, or, alternatively, impose fair consequences based on the reason for their default on payment

• How Can Iowans Effectively Prevent the Commercial Misappropriation of Their Identities? Why Iowa Needs a Right of Publicity Statute

  The right of publicity is an individual's right to control the commercial use of her identity. Thirty-five states in the United States recognize the right of publicity, either through statute or common law, and provide their citizens with a mechanism to prevent unauthorized uses of their identities. Iowa, however, is one of the 15 states that does not expressly recognize the right of publicity in any form, leaving Iowans uncertain about their intellectual property rights in their identities. Due to the recent emergence of social media and digital manipulation technology, which make it easier than ever for advertisers to commercially exploit an individual's identity, Iowans are particularly vulnerable to the misappropriation of their identities. Therefore, Iowa's legislature should join the majority of states and adopt a right of publicity statute to provide Iowans with a mechanism to enforce their rights in their identities. The certainty and protection provided by this neutral right of publicity statute will incentivize Iowans to commercialize their identities—enriching Iowa's society and, perhaps, its economy

• Framing the Second Amendment: Gun Rights, Civil Rights and Civil Liberties

  Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, " "civic republican, " "individual, " and "fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article focuses on two common frames gun rights advocates have used to construct realities, identify grievances, motivate supporters, and ultimately influence the meaning of the Second Amendment. Advocates have framed the right to keep and bear arms as a "civil right" primarily concerned with equality values and opposed to discriminatory treatment of gun owners and gun rights. Gun rights advocates have also developed and deployed a "civil liberty" frame that warns of impending disarmament, loss of liberty, and tyrannical government. Framing the Second Amendment in these discrimination and disarmament terms has deeply affected gun rights discourse, lawmaking, and judicial decisions. The Article focuses on the vocabulary of arms in order to better understand how advocates in gun debates generate and use frames, and how those frames affect the Second Amendment's meaning. Constitutional framing by both gun rights and gun control advocates will significantly influence future debates about the meaning and scope of the Second Amendment

• Our Kardashian Court (and How to Fix It)

  The Supreme Court is broken. After cataloging its dysfunctions, this Article suggests a contributing cause and proposes a solution. The contributing cause is that Justices have become celebrities, and, like other celebrities, play to their fan base. The solution is to limit their opportunities to use their official status to do so: Congress should pass a law prohibiting concurring or dissenting opinions and requiring each case to be decided by an unsigned opinion that does not disclose the number of Justices who join it. The Article outlines the advantages of such a law and considers possible objections to it, including both constitutional and nonconstitutional objections. It ultimately concludes that it would be constitutional and that although there are significant risks, the probable benefits outweigh the probable costs. And because it is a statutory solution rather than a constitutional one, it can be viewed as an experiment that can easily be terminated if it does not work out. In the current climate, it is a risk worth taking

• Better Homes and Scattered Gardens: Why Iowa Should Legalize 'Human Composting' as a Method of Final Disposition

  Washington State became the first state to legalize "human composting" (also known as "recomposition") as an available method of final disposition. Recomposition is a process that ultimately turns the body into soil. It is more environmentally sustainable than traditional methods of disposition (i.e., burial and cremation) and is a crucial alternative in the face of increasing land scarcity and climate change. Introducing recomposition into the death care market would bode well for consumers because it is cheaper than traditional burial and it expands people's power of choice. Recomposition is safer than other death care occupations (i.e., embalming and cremating). Iowa should legalize human composting because it can serve as an affordable mortuary practice while promoting efficient land use, environmental protection, consumer welfare, public health, and social equality

• Vanity Lawfare: Vanity License Plates and the First Amendment

  When Pennsylvania introduced the vanity license plate in the early 1930s, it represented the first time a state government added an expressive component to the otherwise solely identificatory license plate. Vanity-plate programs are now ubiquitous across the United States, and those programs are accompanied by sweeping and amorphous restrictions on categories of expression that the states will permit to appear on the plates. When these restrictions face constitutional challenge, both state and federal courts have disagreed as to whether those restrictions are constitutional, reaching wildly different conclusions at every stage of the First Amendment analysis. This Note suggests that the Supreme Court, in an appropriate case, should clarify the framework for analyzing the constitutionality of vanity-plate regulations. Based on this adjusted framework, this Note contends that, in many cases, states' broad restrictions cannot be squared with the First and Fourteenth Amendments 'joint guarantee that state governments "shall make no law . . . abridging the freedom of speech. " To reach this end, this Note first concludes that vanity plates' alphanumeric configurations are better understood as the expression of the private actors who request them, rather than of the state governments who approve the plates. Second, it turns to those categories of speech most commonly proscribed by vanity-plate regulations. It concludes that several of these categories—offensive speech, disparaging speech, and profane speech—cannot be wholly restricted without engaging in viewpoint discrimination, which is at the core of what is prohibited by the First Amendment

• Eighth Amendment Presumptive Penumbras (and Juvenile Offenders)

  Bright line constitutional rules tend to create unfair outcomes in close proximity to the bright line. In the context of the death penalty, such distinctions possess an entirely different level of seriousness that requires deeper reflection. This Article develops the concept of presumptive penumbras around capital constitutional bright lines and argues for its application to juvenile offenders under the Eighth Amendment. Specifically, the Article advocates, within the current constitutional rules, for a presumption against the imposition of the death penalty or juvenile life without parole in cases where the age of the offender is in proximity to—within the penumbra of—the bright line of age 18. Part II of the Article explains the inherent problems that stem from bright line rules and how both the Constitution and the death penalty exacerbate such problems. In Part III, the Article advances a typology of "presumptive penumbras"—a tool for minimizing the problems identified in Part II. Then, in Part IV, the Article applies the concept of presumptive penumbras to bright line rules related to juvenile offenders under the Eighth Amendment. Finally, in Part V, the Article concludes by sketching out some additional potential applications of presumptive penumbras to other criminal law bright lines under the Eighth Amendment

Featured documents

• The Machine as Author

  The use of Artificial Intelligence ("AI") machines using deep learning neural networks to create material that facially looks like it should be protected by copyright is growing exponentially. From articles in national news media to music, film, poetry and painting, AI machines create material that ...

• Proxy Discrimination in the Age of Artificial Intelligence and Big Data

  Big data and Artificial Intelligence (“AI”) are revolutionizing the ways in which firms, governments, and employers classify individuals. Surprisingly, however, one of the most important threats to antidiscrimination regimes posed by this revolution is largely unexplored or misunderstood in the...

• The More Things Change: Improvement Patents, Drug Modifications, and the FDA

  Pharmaceutical companies often replace prescription drugs that are already on the market with modified versions that have the same active pharmaceutical ingredient. On the surface, such activity seems benign and perhaps even salutary. Nonetheless, antitrust litigation has revealed that firms...

• Against Adversary Prosecution

  American prosecutors are conventionally understood as having two different roles. They seek conviction and punishment as adversary advocates, and they also ensure the system's fairness as ministers of justice. This Article argues that the former role, prosecutorial adversarialism, should be...

• The Need for Transparency in the Age of Predictive Sentencing Algorithms

  Criminal law scholars devote substantial research to sociological and behavioral studies to determine characteristics common among reoffenders. This research aligns with a massive effort to reform the criminal justice system by reducing recidivism as a means to cure high crime rates and overcrowded ...

• Not 'All Natural': Modernizing Privity to Allow Breach of Contract Claims for Mislabeled Food Products

  Unknown to most consumers, the U.S. Food & Drug Administration does not regulate "all natural" food labels. Manufacturers commonly abuse this loophole by placing the "all natural" label on products that are clearly not "all natural." In doing so, some manufacturers intentionally deprive consumers...

• Law and the Blockchain

  All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans' innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default...

• Efficient Copyright Infringement

  Copyright infringement is said to be socially costly because it robs owners of due recompense and depresses incentives for creative production. This Article contends that, in order to achieve copyright’s goal of maximizing cultural production, this dominant story of infringement’s costs requires...

• Heightened Procedure

  When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for identical procedures to...

• Structural Sensor Surveillance

  City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional...