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Governments and commercial firms create profit and social gain by exploiting large pools of data. One source of valuable data, however, lies in public hands yet remains largely untapped. While the deep reservoirs of data produced by Congress and federal agencies have long been available for public use, the data produced by the federal judiciary is only loosely regulated, imperfectly available to the public at large, and largely ignored by scholars. The ordinary process of litigation in federal courts generates an enormous volume of data. Especially after recent developments in large language models, this data holds immense potential. It can be used to predict case outcomes or clarify the law in ways that advance legality and judicial access. It can reveal shortfalls in judicial practice and enable the provision of cheaper, better access to justice. It can make legible many otherwise invisible social facts that, if brought to light, can improve public policy. Or the data can fuel private profits, its benefits accruing to a small coterie of data brokering firms capable of monopolizing its commercial use. This Article is the first to address the complex empirical, legal, and normative questions raised by the untapped public asset of judicial data. It develops a positive, descriptive account of how federal courts produce, dissipate, preserve, or disclose information. This account includes a map of the well-known sources of Article III data (for example, opinions, orders, and briefs), but also extends to a massive volume of 'dark data' produced but either lost or buried by the courts. This positive analysis further uncovers a complex administrative framework that erects a plethora of walls and hurdles--some categorical, and some individuated--to slow down or stop public access. With this positive understanding in hand, we offer a careful analysis of the constitutional questions implicated in decisions to disclose--or to render opaque--judicial data. Drawing attention to the key question of who controls judicial data flows, we demonstrate the existence of sweeping congressional power to regulate judicial data outside of a small zone of inherent judicial authority and a handful of instances in which privacy or safety are implicated by disclosure. Congressional authority, therefore, is the rule and not the exception. Having established these empirical and legal predicates, the Article offers a normative vision of how Congress should regulate the production and dissemination of judicial data in light of the capabilities and incentives of relevant actors. The information produced by the federal courts should not exclusively be a source of private profit for a few data-centered firms. It is a public asset that should be elicited and disseminated in ways that advance the federal courts' mission of equal justice under law., Table of Contents Introduction I. The Informational Economy of the Federal Courts A. The Production of Judicial Data B. The Capture (or Flight) of Judicial Data 1. Filings as written [...]

A minimal, reasonably uncontroversial demand of any legal system is that it should stabilize a polity against both the chance hazards of ordinary violence and sudden blows of extraordinary, destabilizing misfortune. Law in the contemporary United States, though, has not so far abated the lethal toll of violent crime, the serial mass shootings of children, the endless flow of racialized police violence, or even the toll of insurrectionary violence shadowing democratic politics. The gap between law's operation in practice and its ultimate aspirations toward social order--especially for the socially and economically marginal--offers a hint that something in our dominant working model of law, or its relation to an ideal of the rule of law, is awry or inaccurate. This Book Review reconsiders some presently dominant assumptions about how a well-functioning legal system works in light of new evidence of how law has operated across a wide historical and geographic panorama. This exercise in historical and cross-cultural contextualization has implications for our choice of a sound working definition of law, and for a clear understanding of the latter's relationship to broader rule-of-law ambitions. It also bears on whether law is likely to advance or retard emancipatory projects of social reform, especially those pertaining to racial injustice. The spur for this reconsideration is Professor Fernanda Pirie's book, The Rule of Laws: A 4,000-Year Quest to Order the World, an extraordinary and ambitious effort to fuse historical, anthropological, sociological, and legal learning across continents and eras into a single narrative arc. Starting with the historical materials eloquently marshalled by Pirie, I refine a new 'polythetic' definition of law that is distinct and different from the demotic definition of law commonly used in popular and juristic discourse alike. To illuminate its distinctive form and implications, I bring this polythetic definition into conversation with relevant elements of the leading jurisprudential theories of H.L.A. Hart and Lon L. Fuller. This is done with the aim of sparking new ways of thinking about the relation of law to the state on the one hand, and about legalistic aspirations of the rule of law on the other. In concluding, I consider the implications of the polythetic definition of law for one especially pressing contemporary problem--the question of how law relates to projects of maintaining racial hierarchies or realizing their reform., The Rule of Laws: A 4,000-Year Quest to Order the World BY FERNANDA PIRIE BASIC BOOKS: HACHETTE BOOK GROUP, 2021 BOOK REVIEW CONTENTS INTRODUCTION 490 I. LAW AS IT WAS: [...]

The extensive political science, sociology, and legal literatures on democratic backsliding all tend to approach the issue in the same way: Start with a recent example of democratic decay. Then reason back from that example to generate a more extensive account of backsliding mechanisms or consequences. In contrast, Norwegian political scientist and sociologist Stein Ringen, in a book called How Democracies Live: Power, Statecraft, and Freedom in Modern Societies , offers a diagnosis of democratic backsliding that flips this standard sequence of analysis. Rather than beginning with case studies, Ringen offers an investigation of five "core" concepts of political theory. Those who seek to ameliorate democracy's current woes, he contends, should start with this sort of very general anatomy lesson. Only with the resulting conceptual map of political theory can they develop specific lessons for the task of managing democratic revival today. By negative implication, Ringen suggests, reformers will be led astray by starting with a specific case. The latter approach, he implies, causes them to overlook or misconstrue basic elements of the political order that must be fixed before the democratic ship can be righted. This review considers whether Ringen's anatomy-inspired method yields insights and, further, whether, more generally, an anatomical approach to political concepts can deepen our understanding of democracy and its present travails. It offers reasons for skepticism on both counts. It may well be possible to construct a taxonomy of political concepts to clarify the terms of democratic survival. But the specific taxonomy of core concepts offered in How Democracies Live does not plainly succeed. [ABSTRACT FROM AUTHOR]

The dignitary account of the rule of law proposes that values of human dignity and agency are appropriately recognised through legal rules and institutions that create opportunities for legal subjects to engage in deliberation and the exercise of practical reason. In a collection of essays published over a period of almost two decades, Thoughtfulness and the Rule of Law , Jeremy Waldron offers a comprehensive account of the grounds and institutional implications of taking dignity so understood as a core rule-of-law desideratum. The ensuing account is novel, stimulating and distinct. There is, however, a chasm between the platforms identified by Waldron and his ambition of advancing dignity. Further, a dignity norm cannot supply a plausible evaluative benchmark under all (or most) plausible circumstances. Its domain might in consequence be more circumscribed than Waldron intimates. [ABSTRACT FROM AUTHOR]

PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION. By Robert L. Tsai. New York: W.W. Norton & Company, Inc. 2019. Pp. 276. $27.95. INTRODUCTION Our Republic these days is riven [...]

INTRODUCTION 2127 I. DOMAINS OF UNCERTAINTY AND STABILITY IN STATE STANDING DOCTRINE 2131 A. State Standing as a Standing Problem 2132 B. Easy and Hard Problems in the Jurisprudence of [...]

Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer both a positive account of the function that disqualification plays in constitutional ordering and a normative account of the role that it should play. Drawing on domestic and comparative evidence, we develop the blueprint for an “optimal” disqualification regime. This regime would disqualify officials who pose a clear threat to a relatively minimalist, electorally focused conception of democracy, while avoiding overuse for less pressing ends or, worse, abuse for antidemocratic purposes. It would contain multiple pathways that would be calibrated to avoid the possibility of partisan arbitrage. These pathways would generally regulate individuals as such rather than groups and parties. Usually, they would not run directly through elected bodies. The substantive prerequisite for disqualification would more often be stated as a rule than as a standard, and the ensuing prohibitions would more often be temporary than permanent. This optimal approach leads to specific reform recommendations for the United States. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, just as Congress did after the Civil War and as it is empowered to do now via its authority to “enforce” the terms of the Reconstruction Amendments. Second, we develop a case for a framework statute setting forth a judicial mechanism for enforcing the two-term limit on chief executives under the Twenty-Second Amendment. Finally, we propose a decoupling of impeachment from disqualification, creating two distinct institutional pathways for disqualification. [ABSTRACT FROM AUTHOR]