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LEGAL SCHOLARSHIP NETWORK: LAW SCHOOL WORKING PAPER SERIES
UNIVERSITY OF VIRGINIA SCHOOL OF LAW PUBLIC LAW & LEGAL THEORY "Police Shootings: Is Accountability the Enemy of Prevention?" 
Virginia Public Law and Legal Theory Research Paper No. 2019-16 BARBARA E. ARMACOST, University of Virginia School of Law
Email: bea4k@virginia.edu
Police officers shoot an unarmed man or woman. The victim's family and community cry out for someone to be held accountable. In minority communities, where a disproportionate number of officer-involved shootings occur, residents suspect that racial animus and stereotypical assumptions about "dangerous black men" played a part. Citizens seek accountability by filing lawsuits and demanding criminal prosecutions. They are usually disappointed: The majority of police-involved shootings are deemed "justified" by police investigators and courts, and no criminal charges are brought. If so, this is the end of the inquiry under current legal standards and there is no accountability. There is also no legal reason to ask why the shooting occurred and how it could have been prevented. This article argues that the current accountability paradigm is hindering genuine progress in decreasing the number of police-involved shootings, including those motivated by racism. We need to look beyond the limited time-frame embraced by the current legal standard and view police-involved shootings as organizational accidents. Borrowing lessons learned from the aviation and healthcare fields, this article urges a prevention-first approach that applies systemic analysis to what are systems problems. In these sectors, investigations of tragic accidents employ Sentinel Event Review, a systems-oriented strategy that looks back to identify all the factors that contributed to the event and looks forward to identify systemic reforms that could mitigate the chance of recurrence. The goal is to create systemic barriers that make it more difficult for sharp-end actors to err or misbehave. I am not arguing that individual police officers should escape responsibility for their actions. But our cur-rent relentless focus on accountability – while an understandable human reaction – has become the enemy of prevention in the very communities that need it most. "The One Voice in Foreign Relations Law and the Future of Federal Common Law"
Virginia Public Law and Legal Theory Research Paper No. 2019-17 PAUL B. STEPHAN, University of Virginia School of Law
Email: pbs@virginia.edu
For most of the past century, those who followed foreign relations law believed that federal law, including that made by the federal courts in the absence of legislation and treaties, should govern the field. Anything else would burden political and economic ties with the rest of the world and stymie efforts to adapt the law to a rapidly changing international environment. Only in the last two decades has a revisionist perspective emerged, one that sees federal judicial lawmaking as more of a threat to, than a solvent for, successful foreign relations. Both the Supreme Court and the American Law Institute's new Restatement (Fourth) of the Foreign Relations Law of the United States shows the influence of this revisionism, but many lower courts and the majority of legal academics continue to believe that one voice requires judicial control. This article examines the underappreciated shortcomings of a federal common law of foreign relations and defends further limits on that project. "Insincere Evidence"
105 Virginia Law Review (2019, Forthcoming)
U Iowa Legal Studies Research Paper No. 2019-05
Virginia Public Law and Legal Theory Research Paper No. 2019-18
Virginia Law and Economics Research Paper No. 2019-07 MICHAEL D. GILBERT, University of Virginia School of Law
Email: mgilbert@virginia.edu
SEAN SULLIVAN, University of Iowa College of Law
Email: sean-sullivan@uiowa.edu
Proving a violation of law is costly. Because of the cost, minor violations of law often go unproven and thus unpunished. To illustrate, almost everyone drives a little faster than the speed limit without getting a ticket. The failure to enforce the law against minor infractions is justifiable from a cost-benefit perspective. The cost of proving a minor violation—for example, a driver broke the speed limit by one mile per hour—outstrips the benefit. But it has the downside of underdeterrence. People drive a little too fast, pollute a little too much, and so on.
This paper explores how insincere rules, meaning rules that misstate lawmakers' preferences, might reduce proof costs and improve enforcement. To demonstrate the argument, suppose lawmakers want drivers to travel no more than 55 mph. A sincere speed limit of 55 mph may cause drivers to go 65 mph, while an insincere speed limit of 45 mph may cause drivers to drop down to, say, 60 mph—closer to lawmakers' ideal. Insincere rules work by creating insincere evidence. In the driving example, the insincere rule is akin to adding 10 mph to the reading on every radar gun.
We distinguish insincere rules from familiar concepts like over-inclusive rules, prophylactic rules, and proxy crimes. We connect insincere rules to burdens of persuasion, showing how they offset each other. Finally, we consider the normative implications of insincere rules for trials, truth, and law enforcement. The logic of insincerity is not confined to speed limits. The conditions necessary for insincerity to work pervade the legal system. | ^top
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Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu
RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu
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