Digital Commons Network^™

A Neo-Federalist View Of The Supreme Court’S Docket: Analyzing Case Selection And Ideological Alignment, Arthur D. Hellman

Articles

For more than 70 years, scholars have engaged in an intense debate over a core constitutional question: what restraints does the Constitution place on Congress’s power to limit the jurisdiction of the federal courts? Far less attention has been given to an equally important real-life question: how does the operation of the jurisdiction, as defined by Congress and the Supreme Court, comport with the assigned role of the federal courts in the system of government established by the Constitution? This Article takes a novel approach: it draws on constitutional theory to devise a set of tools for addressing the operational …

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

Articles

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)-including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds-in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …

Beyond Algorithmic Disclosure For Ai, Christopher S. Yoo

Articles

One of the most commonly recommended policy interventions with respect to algorithms in general and artificial intelligence ("AI") systems in particular is the need for greater transparency, often focusing on the disclosure of the variables employed by the algorithm and the weights given to those variables. This Essay argues that any meaningful transparency regime must provide information on other critical dimensions as well. For example, any transparency regime must also include key information about the data on which the algorithm was trained, including its source, scope, quality, and inner correlations, subject to constraints imposed by copyright, privacy, and cybersecurity law. …

Tolling Justice, Anjelica Hendricks

Articles

Police officers commit crimes. All too often, however, they are not prosecuted. For decades, the conventional explanation has been that unprosecuted police crimes are the product of human choices: prosecutors who shield the police, unions that immunize their members from accountability, and police themselves for refusing to condemn their colleagues. Though these explanations play a role in the phenomenon, they are incomplete.

This Article shows that there is another reason why police officers frequently escape criminal accountability: statutes of limitations. Using a hand-built, original dataset of 838 likely police crimes, I find that statutes of limitations prevented prosecutors from bringing …

Free Speech Originalism: Unconstraining In Theory And Opportunistic In Practice, Caroline Mala Corbin

Articles

Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting …

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

Articles

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

Rethinking The Balance Of Interests In Non-Exculpatory Defenses, Paul Robinson, Jeffrey Seaman, Muhammad Sarahne

Articles

"Most criminal law defenses serve the criminal law’s goal of shielding blameless defendants from liability. Justification defenses, such as self-defense and law enforcement authority, exculpate on the ground that the defendant’s conduct, on balance, does not violate a societal norm. Excuse defenses, such as insanity and duress, exculpate on the ground that, while the defendant may well have violated a societal norm, it was done blamelessly. That is, it is the excusing conditions, not the defendant, that is to blame. In contrast, a third group of general defenses, what has been called “non-exculpatory defenses,” bar liability in instances where the …

Bail At The Founding, Sandra G. Mayson, Kellen R. Funk

Articles

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case …

Integrating Human Rights In Domestic Clinical Practice, Tamar Ezer, Elizabeth Brundige, Aya Fujimura-Fanselow, Ryan Thoreson

Articles

Given that the human rights framework contains a rich and evolving body of norms and standards, integrating human rights law into clinical teaching provides new avenues to approach problem-solving. A human rights framework offers additional sources to ground moral and legal claims, as well as new strategies and advocacy targets. These alternatives work to foster creativity and lawyering skills, particularly in areas where domestic law is limited or constraining. Moreover, U.S. advocates have much to learn from global human rights struggles and advocacy efforts and can benefit from engaging in human rights discourse and practice. This article introduces readers to …

Toward A Better Criminal Legal System: Improving Prisons, Prosecution, And Criminal Defense, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

Articles

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law. The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris. Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime. The course culminated in a Group Project; under the heading “improving the …

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Articles

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Just Don’T Do It: Why Cannabis Regulations Are The Reason Cannabis Businesses Are Failing, Edward Adams

Articles

Part I will provide a historical overview of the cannabis plant and our country’s experience with it prior to the election of President Richard Nixon. It is at that point, the early 1970s, that the current federal cannabis scheme began to take shape. Sections I.A though I.C will discuss the inception of the War on Drugs during the Nixon Administration and examine the subsequent social movement that led President Reagan to revamp and expand the War on Drugs throughout the 1980s.

The legal framework for federal cannabis regulation has largely remained stagnant since the Reagan Administration. Nevertheless, the federal stance …

Chaotic Childhoods, Stephanos Bibas

Articles

Rob Henderson’s breakout memoir, Troubled, gives us a window on troubled youth. Henderson, a brilliant young psychologist, illumines how harmful childhood instability is by reflecting on his own experience. He never knew his father, was abandoned by his drug-addicted mother, and bounced around foster care. After squandering much of his early education and drowning his rage in alcohol, drugs, fights, and vandalism, he made his way through the Air Force to Yale and now Cambridge. But few of his friends escaped the wounds from their childhoods; many wound up unemployed, in prison, or dead. As an outsider to the elites …

A Critical Race Theory Analysis Of Critical Race Theory Bans, Caroline Mala Corbin

Articles

A majority of state legislatures have introduced bills prohibiting public schools from teaching certain "divisive concepts" attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that …

Assemblages And Actor Networks In The Borderlands - The Apposition Of Reproductive Rights Along The Mexican-American Border, Madeleine M. Plasencia

Articles

In 1971, Sarah Weddington argued Roe v. Wade as a class action on behalf of pregnant women living in Texas, many of whom, including herself had to flee the State to obtain an abortion in Mexico. In 2021, Texas enacted S. B. 8, otherwise known as the Texas Heartbeat Act, which created a private cause of action for injunctive relief and statutory damages awards against any person assisting in and any physician accused of performing an abortion, thus reigniting the cross-border flows that historically have made Mexico a haven for runaway enslaved people and pregnant persons heading south to freedom. …

Confronting Structural Inequality In State Labor Law, Andrew Elmore

Articles

Low-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses …

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

Articles

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics—electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants—measured by the fixed terms of state and federal executive officials—may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts—measured by the fixed terms of state judges—creates openings for strategic behavior among litigants (both public …

Walking The Walk: Ex-Prisoners, Lived Experience, And The Delivery Of Restorative Justice, Allely Albert

Articles

Although the role of prisoners and ex-prisoners has recently received significant attention in restorative justice research, the literature typically treats them as the ‘offending’ party within restorative justice processes. This article instead focuses on ex-prisoners as facilitators of restorative justice, highlighting their ability to lead such programmes. Using a case study from Northern Ireland, the article examines the way that experiences of incarceration have directly influenced practitioners’ skills and their ability to uphold restorative justice principles. It is contended that qualities developed and honed in the prison environment ultimately translate to unique characteristics that can improve the restorative process. As …

Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne

Articles

The article discusses the failures of the American justice system to find and punish offenders for the majority of serious crimes. It highlight the low clearance and conviction rates for crimes such as murder, rape, and assault. It further argues that these failures of justice have practical consequences on crime rates and also disproportionately affect racial minorities and low-income communities.

Island Musings: A Selective Bibliography Of Early Key West, Robin Schard

Articles

This bibliography identifes and describes 75 works that focus on Key West during its first 50 years (1821-71) as a U.S. possession. General, legal, and popular culture materials are included.

“Social Workers By Day And Terrorists By Night?” Wounded Healers, Restorative Justice, And Ex-Prisoner Reentry, Allely Albert

Articles

Common to many post-conflict societies, former political prisoners and combatants in Northern Ireland are often portrayed as security threats rather than as potential contributors to societal peacebuilding processes. This distrust limits their ability to contribute to the transitional landscape and additionally hinders desistance processes during their reentry from prison. Drawing from the work of Maruna, LeBel, and others on “wounded healers,” this article critically examines the restorative justice work of ex-prisoners who have become involved in leadership roles within community based restorative justice. It is argued that such practitioner work can help former combatants overcome many of the challenges typically …

"You’Re Fired": Criminal Use Of Presidential Removal Power, Claire Finkelstein, Richard Painter

Articles

This Article addresses a specific, but critically important aspect of presidential power: the intersection between the president’s power to remove executive branch officers and criminal laws that are generally applicable to both office-holders and non-office-holders alike. The question we ask is whether the president can obstruct justice by removing a presidential appointee who is investigating or prosecuting crimes of the president himself or of his associates. Can a president remove an appointee who refuses to work on behalf of the president’s re-election campaign even though it is a crime for anyone, including a president, to order or coerce a federal …

Ireland’S Response To Domestic, Sexual And Gender-Based Violence: An Interview With Orla O’Connor, Deirdre Kelly

Articles

Orla O’Connor is the Director of the “National Women’s Council of Ireland” (NWCI), the leading national women’s membership organisation with over
190 member groups. She has held senior management roles in several non-governmental organisations for over 25 years. Time magazine recognised her as one of the 100 Most Influential People in 2019 for her role as Co-director of “Together for Yes”, the successful national civil society campaign that was influential in Ireland voting overwhelmingly in favour of removing the Eighth Amendment from the Constitution, a landmark referendum, which led to the legalisation of abortion in 2018. In addition to campaigning …

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

Articles

The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

Donating To The District Attorney, Michael Morse, Carissa Byrne Hessick, Nathan Pinnell

Articles

The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study of campaign contributions in prosecutor accountability by analyzing contributions to local candidates as well as their election results. It details the amount of money in local prosecutor elections, including from interest groups, and the relationship between candidate fundraising and success. The stark differences across the country underscore …

Carceral Socialization As Voter Suppression, Danieli Evans

Articles

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples' sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

Antimatters: The Curious Case Of Confederate Monuments, Jeremiah Chin

Articles

Confederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

Articles

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …