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The New Comity Abstention, John Harland Giammatteo

Journal Articles

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …

Impact Of Post-Incarceration Care Engagement Interventions On Hiv Transmission Among Young Black Men Who Have Sex With Men And Their Sexual Partners: An Agent-Based Network Modeling Study, Anna L Hotton, Francis Lee, Daniel Sheeler, Jonathan Ozik, Nicholson Collier, Mert Edali, Babak Mahdavi Ardestani, Russell Brewer, Katrina M Schrode, Kayo Fujimoto, Nina T Harawa, John A Schneider, Aditya S Khanna

Journal Articles

BACKGROUND: Understanding the impact of incarceration on HIV transmission among Black men who have sex with men is important given their disproportionate representation among people experiencing incarceration and the potential impact of incarceration on social and sexual networks, employment, housing, and medical care. We developed an agent-based network model (ABNM) of 10,000 agents representing young Black men who have sex with men in the city of Chicago to examine the impact of varying degrees of post-incarceration care disruption and care engagement interventions following release from jail on HIV incidence.

METHODS: Exponential random graph models were used to model network formation …

Festschrift Symposium: Honoring Professor Sam Pillsbury, Michael Waterstone, Guyora Binder, Mary Graw Leary, Deborah W. Denno, Stephen J. Morse, Scott Wood, John T. Nockleby, Gary C. Williams, Samantha Buckingham, Samuel Pillsbury, Kevin Lapp

Journal Articles

The Loyola of Los Angeles Law Review is pleased to publish this Festschrift Symposium Honoring Professor Samuel Pillsbury. The following is an edited transcript of the live symposium held at LMU Loyola Law School on Friday, March 25, 2022.

Economic Evaluation Of An Intervention To Prevent Adolescent Dating Violence (Me & You), Ellerie Weber, Melissa F Peskin, Christine M Markham, Ross Shegog, Elizabeth R Baumler, Robert C Addy, Jeff R Temple, Belinda Hernandez, Paula Cuccaro, Melanie A Thiel, Efrat K Gabay, Susan Tortolero Emery

Journal Articles

No abstract provided.

Through A Lens Of Genocide: A Different Approach For Hate Crimes Legislation, Bruce Ching

Journal Articles

Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents …

The Scarlet Letter "E": How Tenancy Screening Policies Exacerbate Housing Inequity For Evicted Black Women, Yvette N.A. Pappoe

Journal Articles

The COVID-19 pandemic resulted in an unprecedented health and economic crisis in the United States. In addition to more than nine hundred thousand deaths in the United States and counting, another kind of crisis emerged from the pandemic: an eviction crisis. In August 2020, an estimated thirty to forty million people in America were at risk of facing eviction by the end of the year. Black women renters faced a higher risk of losing their homes than other groups. At the onset of the pandemic, the federal government implemented eviction moratoria to prevent the evictions of tenants who were unable …

Asian American Allyship, Victor C. Romero

Journal Articles

George Floyd's tragic death not only sparked numerous nationwide protests decrying the continued violence against Black people, but also resurrected conversations around the complicity of Asian Americans in Black oppression. Just as officer Tou Thao, a Hmong American, stood idly by while a white officer stepped on Floyd's neck, many Asian Americans have taken positions that run contrary to policies that foster inclusion, or what may be termed "integrative egalitarianism" -- the idea that "governmental programs . . . designed to overcome arbitrary inequalities stemming from accidents of birth are a worthwhile investment in society's future."

Using the Floyd-Thao narrative …

Re-Tribute: Reconsidering The Moral Psychology Of Culpability And Desert, Guyora Binder, Matthew Biondolillo

Journal Articles

No abstract provided.

Decoupling Property And Education, Nicole Stelle Garnett

Journal Articles

Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that decoupling property and education also advances at least economic development goals. …

Let's Not Do Responsibility Skepticism, Ken M. Levy

Journal Articles

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminal, exacerbate mass incarcerations, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's 'illusionist' response to responsibility skeptics - that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice system - is generally compelling, it would not work if a majority of society were to convert, theoretically and …

Multicultural Populations And Mixed Legal Systems In The United States: Louisiana And Puerto Rico, Olivier Moréteau, Luis Muniz Arguelles

Journal Articles

No abstract provided.

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Journal Articles

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

On The Front Lines Of The Covid-19 Pandemic: Occupational Experiences Of The Intimate Partner Violence And Sexual Assault Workforce, Leila Wood, Rachel Voth Schrag, Elizabeth Baumler, Dixie Hairston, Shannon Guillot-Wright, Elizabeth Torres, Jeff R Temple

Journal Articles

In the face of increasing risk for intimate partner violence (IPV) and sexual assault during the COVID-19 pandemic, there is an urgent need to understand the experiences of the workforce providing support to survivors, as well as the evolving service delivery methods, shifting safety planning approaches, and occupational stress of frontline workers. We addressed this gap by conducting an online survey of members of IPV and sexual assault workforce using a broad, web-based recruitment strategy. In total, 352 staff from 24 states participated. We collaborated with practitioner networks and anti-violence coalitions to develop the brief survey, which included questions about …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baradaran Baughman, Christopher Robertson

Journal Articles

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Sexual Violence, Intangible Harm, And The Promise Of Transformative Remedies, Jill C. Engle

Journal Articles

This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused …

Drug Supervision, Jacob Schuman

Journal Articles

Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …

Criminal Violations, Jacob Schuman

Journal Articles

Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a condition of their supervision, sending 350,000 people to prison each year. To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations,” such as missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on an …

Insuring Intentional Torts, Christopher French

Journal Articles

This Article analyzes the competing public policies and arguments in favor of and against allowing insurance to cover intentional torts. In doing so, it discusses numerous lines of liability insurance that expressly cover various types of intentional torts. It then explores whether the theoretical foundation underlying the public policy against allowing liability insurance to cover intentional torts—that intentional misconduct is effectively deterred and punished by disallowing coverage—is supported by empirical evidence.

Departments, Schools, Divisions, And Colleges: Organization Of Academic Units In Public Master’S Institutions In The United States, Brent Graves, Brian Cherry

Journal Articles

No abstract provided.

Mapping Racial Capitalism: Implications For Law, Carmen G. Gonzalez, Athena D. Mutua

Journal Articles

The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of race-making. We understand race-making as including racial stratification, …

"Don't Know Where To Go For Help": Safety And Economic Needs Among Violence Survivors During The Covid-19 Pandemic, Leila Wood, Elizabeth Baumler, Rachel Voth Schrag, Shannon Guillot-Wright, Dixie Hairston, Jeff Temple, Elizabeth Torres

Journal Articles

The COVID-19 pandemic and related quarantine has created additional problems for survivors of interpersonal violence. The purpose of this study is to gain a preliminary understanding of the health, safety, and economic impacts of the COVID-19 pandemic on people that are experiencing or have previously experienced violence, stalking, threats, and/or abuse. An online survey, open from April to June 2020, was taken by people with safety concerns from interpersonal violence. Participants were recruited from IPV and sexual assault-focused agencies, state coalitions, and social media. Quantitative data were summarized using descriptive methods in SPSS and coding methods from thematic and content …

The Constitutionalization Of Parole: Fulfilling The Promise Of Meaningful Review, Alexandra Harrington

Journal Articles

Almost 12,000 people in the United States are serving life sentences for crimes that occurred when they were children. For most of these people, a parole board will determine how long they will actually spend in prison. Recent Supreme Court decisions have endorsed parole as a mechanism to ensure that people who committed crimes as children are serving constitutionally proportionate sentences with a meaningful opportunity for release. Yet, in many states across the country, parole is an opaque process with few guarantees. Parole decisions are considered “acts of grace” often left to the unreviewable discretion of the parole board.

This …

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.

Disbanding Police Agencies, Anthony O'Rourke, Rick Su, Guyora Binder

Journal Articles

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of …

Illiberalism And Authoritarianism In The American States, James A. Gardner

Journal Articles

Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and …

Veiling And Inverted Masking, Saleema Saleema Snow

Journal Articles

“Good morning, Your Honor, AA, here on behalf of the United States government.”1 AA recounted her proudest moment: appearing in federal district court as an attorney for the Department of Justice (DOJ) in a religious accommodation case under Title VII of the Civil Rights Act of 1964.2 There she stood, an Ivy League graduate and the granddaughter of sharecroppers. She appeared before the court as an African-American Muslim woman in hijab representing the government to uphold the constitutional rights of another Muslim woman.3 The complainant, Safoorah Khan, was employed as a teacher in a small Illinois school district and had …

Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros

Journal Articles

This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools. Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to …

Asylum Attorney Burnout And Secondary Trauma, Lindsay M. Harris, Hillary Mellinger

Journal Articles

We are in the midst of a crisis of mental health for attorneys across all practice areas. Illustrating this broader phenomenon, this interdisciplinary Article shares the results of the 2020 National Asylum Attorney Burnout and Secondary Traumatic Stress Survey (“Survey”). Using well-established tools, such as the Copenhagen Burnout Inventory and the Secondary Stress Trauma Survey, the Survey assessed the well-being of over 700 immigration attorneys navigating the tumultuous asylum space. As the largest such study of United States attorneys to date, it is particularly timely. Between 2017 and 2021, the Trump administration’s extreme policies, sweeping regulatory changes, and Attorney General …

Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero

Journal Articles

There is more to the U.S. Supreme Court’s recent decision in Ramos v.
Louisiana than its holding requiring unanimous state jury verdicts via the
incorporation doctrine. The underlying debate among the Justices in Ramos
about the salience of race in the law is a window into the current cultural
moment. After identifying the racial debate underlying the Justices’ views in
Ramos, this Essay shows how the same pattern emerges in our social and
legal debates around vigilante policing of Black Americans, including a
close-up look at the recent killing of Ahmaud Arbery. Social psychology
teaches us that society stereotypes …