Clogged Conduits: A Defendant’s Right to Confront His Translated Statements
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For helpful comments, I am grateful to participants in the Contracts Section Works-in-Progress Panel at the 2023 AALS Annual Meeting; faculty workshops at George Mason Scalia Law School, Indiana University McKinney Law School, Notre Dame Law School, the University of Florida Law School, the University of Texas Law School, Vanderbilt Law School, and Washington University Law School; the Legal Scholarship Workshop at the University of Chicago; the Workshop on Law, Economics, and Justice at the University of Lucerne; CrimFest; the Decarceration Law Conference; the Junior Business Law Scholars Conference; Markelloquium; and to Ian Ayres, Lisa Bernstein, Sam Bray, Christian Burset, Eric Fish, Rick Garnett, Sherif Girgis, Nadelle Grossman, Daniel Markovits, Jide Nzelibe, J. Mark Ramseyer, Christopher Slobogin, Avishalom Tor, Francisco Urbina, and Julian Velasco. Noah Austin, Zack Beculheimer, Gwendolyn Loop, Savannah Shoffner, Tri Truong, and Steven Tu provided excellent research assistance. Any errors are mine.
Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.
She thanks the University of Chicago Law Review Online team for their helpful feedback.
This Case Note first provides a background on the doctrine of absolute immunity. It then evaluates the court’s analysis in Gay and compares Gay with the Third Circuit’s decision in Williams v. Consovoy (3d Cir. 2006). Finally, this Case Note argues that Gay is more consistent with Supreme Court precedent on absolute immunity and more in line with historical understandings of the doctrine. This issue has particularly high stakes, as psychologists’ medical role can create a “guise of objectivity.” As a result, even a biased psychologist might still receive strong deference from a judge and could then be the reason a person spends the rest of their life in prison.
She thanks the University of Chicago Law Review Online team for their helpful feedback.
This Case Note first provides a background on the doctrine of absolute immunity. It then evaluates the court’s analysis in Gay and compares Gay with the Third Circuit’s decision in Williams v. Consovoy (3d Cir. 2006). Finally, this Case Note argues that Gay is more consistent with Supreme Court precedent on absolute immunity and more in line with historical understandings of the doctrine. This issue has particularly high stakes, as psychologists’ medical role can create a “guise of objectivity.” As a result, even a biased psychologist might still receive strong deference from a judge and could then be the reason a person spends the rest of their life in prison.