Associate Professor of Legal Analysis, Writing and Research
Civilizing Criminal Settlements, 97 B.U. L. REV. (forthcoming 2017) (with Carissa Byrne Hessick and Andy Hessick): This article considers how the criminal system could improve the plea bargaining system by which most cases are resolved by drawing on lessons from the civil system. It suggests relying more heavily on procedures like motions to dismiss, discovery, and summary judgment rather than relying so heavily on the government's leverage over defendants.
"Clientless” Prosecutors, 51 Ga. L. Rev. (forthcoming 2017): This article continues the comparison between class counsel and prosecutors that I detail in “Clientless” Lawyers and considers what criminal law can learn from class action law about lawyer accountability. More specifically, it explores ways that judges can improve accountability in criminal law such as through involvement in plea negotiations and urging prosecutors to justify their decisions on the record when the judge has cause for concern.
“Clientless” Lawyers, 91 Wash. L. Rev. (forthcoming 2017): Class counsel and prosecutors share an unrecognized similarity: both are lawyers who must make decisions that are traditionally reserved to clients. Despite this similarity, class action law turns to judicial review to monitor the resulting agency costs while criminal law relies instead on elections and internal processes. The article contends that class actions should look within the plaintiff’s bar to improve accountability much as criminal law scholars have suggested about prosecutors’ offices.
Compensation’s Role in Deterrence, 91 Notre Dame L. Rev. (forthcoming 2016): I argue that, at least in damages class actions, compensating victims likely deters more wrongdoing than other forms of relief. Scholars have largely overlooked that firms anticipating harm to their reputations as a result of litigation provides a source of deterrence. Because the American public values victim compensation in civil litigation, compensation enhances the legitimacy of the class device and therefore bolsters this reputational deterrence.
Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014): I argue that regardless of admissibility, prosecutors have both an ethical and a constitutional duty to refrain from charging or prosecuting cases based on evidence that they conclude was obtained in an unconstitutional search or seizure.
Awarded Fred C. Zacharias Memorial Prize for Professional Responsibility scholarship by AALS
Prosecutors’ Fourth Amendment, 42 Search & Seizure L. Rep. 71 (2015): This is a shorter version of Beyond the Judicial Fourth Amendment.
Promoting Democracy in Prosecution, 86 Wash. L. Rev. 69 (2011): This article argues that the political check on elected prosecutors has become largely ineffectual because voters lack the information they would need for meaningful monitoring. It therefore proposes requiring prosecutors to disclose the costs of their cases and cases that they decline despite probable cause (including defense, incarceration, and appellate costs) to reinvigorate the political check by providing voters and electoral challengers with meaningful data.
Note, Is This Your Bedroom?: Reconsidering Third-Party Consent Searches Under Modern Living Arrangements, 76 Geo. Wash. L. Rev. 375 (2008): This note considers third-party consent doctrine in shared, non-spousal living arrangements. It urges courts to narrowly analyze the scope of actual third-party consent and require police to ask clarifying questions to the consenter regarding the scope of her authority over the search areas before finding apparent authority to consent.