Digital Commons Network^™

Arrests: Legal And Illegal, Daniel Yeager

Faculty Scholarship

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot. Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …

The Procedural Justice Industrial Complex, Shawn E. Fields

Faculty Scholarship

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …

Less Is More?: Accountability For White-Collar Offenses Through An Abolitionist Framework, Pedro Gerson

Faculty Scholarship

White-collar crime is underenforced: not enough cases are brought, not many convictions are secured, and when they are, those who were convicted usually benefit from leniency not seen in other kinds of criminal wrongdoing. Calls for accountability center on strengthening the traditional tools of criminal law enforcement to reach actors that have so far eluded criminal liability. These responses, however, risk further entrenching the systems that have led the United States to mass incarceration and its many real and tangible harms. In this Article, I question whether an abolitionist framework is possible for white-collar crime. First, I argue that given …

A History Of Fruit Of The Poisonous Tree (1916-1942), Daniel B. Yeager

Faculty Scholarship

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916–1942 …

When “Riot” Is In The Eye Of The Beholder: The Critical Need For Constitutional Clarity In Riot Laws, Nancy C. Marcus

Faculty Scholarship

In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who …

The Watts Gang Treaty: Hidden History And The Power Of Social Movements, William J. Aceves

Faculty Scholarship

On the eve of the 1992 Los Angeles uprising, a small group of gang leaders and community activists drafted an agreement to curtail violence in south Los Angeles. Several gangs in Watts accepted the truce and established a cease-fire agreement. By most accounts, the 1992 Watts Gang Treaty succeeded in reducing gang violence in Los Angeles. Local activists attributed the reduction in shootings to the Treaty. Even law enforcement officials grudgingly recognized the Treaty’s contribution to reducing gang violence and a corresponding decrease in homicides.

The origins of the Watts Gang Treaty can be traced to gang leaders recognizing that …

The Black-White Paradigm’S Continuing Erasure Of Latinas: See Women Law Deans Of Color, Laura M. Padilla

Faculty Scholarship

The Black-white paradigm persists with unintended consequences. For example, there have been only six Latina law deans to date with only four presently serving. This Article provides data about women law deans of color, the dearth of Latina law deans, and explanations for the data. It focuses on the enduring Black-white paradigm, as well as other external and internal forces. This Article suggests how to increase the number of Latina law deans and emphasizes why it matters.

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson

Faculty Scholarship

Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: …

Immigration Detention As An Obstacle To Decarceration, Pedro Gerson

Faculty Scholarship

Criminal legal reform and measures to reduce carceral populations have received increasing media and public policy attention nationwide. These efforts have mainly ignored a parallel development: the consistent rise in the use of immigration detention over the last decade. This Article bridges that gap by arguing that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. This argument relies on three different descriptive claims. First, much scholarly work has shown the extent to which vested interests have hampered criminal legal reform; these same interests could look to immigration detention as an alternative protection. Second, the extent …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Victim Impact Statements At Canadian Corporate Sentencing, Erin L. Sheley

Faculty Scholarship

The recent SNC-Lavalin scandal and its political fallout have drawn
public attention to an existing culture of impunity enjoyed by corporate
criminal wrongdoers, despite the 2004 changes to the Criminal Code of
Canada that intended to make corporate prosecutions easier. In this article,
I argue that the conceptual problems with corporate criminal liability may
lie in the criminal justice system’s general misapprehension of the nature of
corporate crime; especially of the distinct nature of the harm experienced
by white collar victims. I further argue that, therefore, part of the solution
to under-enforcement may be evidentiary: the Crown and courts should, …

On Beauty And Policing, I. India Thusi

Faculty Scholarship

ABSTRACT-"To protect and serve" is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers' perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and …

Victim Impact Statements And Corporate Sex Crimes, Erin L. Sheley

Faculty Scholarship

This Article argues that more frequently including victim impact statements during the sentencing phase of corporate criminal trials would help lay foundation for legislative reforms geared towards punishing corporations on the occasions where genuinely corporate misconduct, such as that of USAG and the Weinstein Company, can be said to have caused sexual offenses. The Article proceeds in three Parts. First, I argue that criminal enforcement against corporations is generally untethered from harm to victims, and that this thwarts one of the most coherent justifications for the existence of corporate criminal liability. Next, I argue that a focus on victim narratives …

Yearning To Breathe Free: Migration Related Confinement In America, Danielle C. Jefferis

Faculty Scholarship

No abstract provided.

Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson

Faculty Scholarship

Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by …

Harm, Sex, And Consequences, I. India Thusi

Faculty Scholarship

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that "distributive consequentialism, " which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified ft focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or "desert, which are often infected by the judgers' own implicit biases. Distributive …

The United States, Mexico, And The War On Drugs In The Trump Administration, James M. Cooper

Faculty Scholarship

This Article examines the war on drugs as persecuted by the United States and how it has been exported to Mexico. It also explores the increased efforts in the drugs war that the Trump administration, through the U.S. Department of Justice, is pursuing at a domestic level. Part I of this Article provides an outline of the dynamics in the quickly evolving and highly tense relationship between the United States and Mexico. Part II of this Article details the historical background of the U.S.-Mexico border region and demonstrates that the border has long been a contested site. Part III provides …

Deporting Undesirable Women, Pooja R. Dadhania

Faculty Scholarship

Immigration law has long labeled certain categories of immigrants "undesirable." One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of …

Radical Feminist Harms On Sex Workers, I. India Thusi

Faculty Scholarship

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects-money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of "human trafficking" and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International's support for decriminalization, and is the premise of several movies and documentaries about "sex slavery." Radical feminists aim …

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

Weighing Democracy And Judicial Legitimacy In Judicial Selection, Kenneth S. Klein

Faculty Scholarship

For over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly-framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between …

Cost-Benefit Analysis And Human Rights, William J. Aceves

Faculty Scholarship

This Article considers whether cost-benefit analysis can provide the human rights movement with the answers it seeks. It offers an instrumentalist and empirical approach to complement the normative arguments that are most often used by the human rights movement. If human rights could be fully monetized, states could consider the full range of benefits that arise from protecting rights and the costs that occur when rights are violated. This approach could provide states with a more accurate methodology for making decisions that affect human rights. In fact, protecting human rights may prove to be cost-effective, particularly when second order costs …

Shortlisted, Hannah Brenner, Renee Knake

Faculty Scholarship

As the New York Times noted in 1971, Mildred Lillie fortunately had no children. Even in her fifties, she maintained "a bathing beauty figure." Lillie was not, however, a swimsuit model. She was one of President Nixon's possible nominees for the United States Supreme Court. This Article tells the stories of nearly a dozen extraordinary women considered, but ultimately not nominated, for the Court before Justice Sandra Day O'Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly …

Sexual Violence As An Occupational Hazard And Condition Of Confinement In The Closed Institutional Systems Of The Military And Detention, Hannah Brenner, Kathleen Darcy, Sheryl Kubiak

Faculty Scholarship

Women in the military are more likely to be raped by other service members than to be killed in combat. Female prisoners internalize rape by corrections officers as an inherent part of their sentence. Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases. This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military. The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization …

Sexual Misconduct In Prison: What Factors Affect Whether Incarcerated Women Will Report Abuses Committed By Prison Staff?, Sheryl Pimlott Kubiak, Hannah Brenner, Deborah Bybee, Rebecca Campbell, Cristy E. Cummings, Kathleen M. Darcy, Gina Fedock, Rachael Goodman-Williams

Faculty Scholarship

No abstract provided.

Liberty At The Borders Of Private Law, Donald J. Smythe

Faculty Scholarship

No abstract provided.

Toward A Civilized System Of Justice: Reconceptualizing The Response To Sexual Violence In Higher Education, Hannah Brenner, Kathleen Darcy

Faculty Scholarship

The reporting, investigation, and prevention of sexual violence in settings that are closed off from the greater community and subject to their own laws, rules, norms and biases present special challenges for survivors of sexual violence. This essay builds on our existing scholarship that explores the pervasive problem and exceedingly high incidence of sexual violence perpetrated against women in closed institutional systems like prison, the military, and immigration detention centers. Survivors in these contexts are routinely denied access to justice internally and from the external criminal justice system; they also face major limitations (imposed by both federal law and Supreme …

Wrongfully Convicted In California: Are There Connections Between Exonerations, Prosecutorial And Police Procedures, And Justice Reforms?, Justin P. Brooks, Zachary Brooks

Faculty Scholarship

No abstract provided.

If Hindsight Is 20/20, Our Justice System Should Not Be Blind To New Evidence Of Innocence: A Survey Of Post-Conviction New Evidence Statutes And A Proposed Model, Justin P. Brooks, Alexander Simpson, Paige Kaneb

Faculty Scholarship

No abstract provided.