Digital Commons Network^™

Democratic Policing, Building Trust, And Willingness To Call 911: Examining The Relationship Between Law Enforcement Legitimacy And Calling The Police, Kyle Mclean, Brian Lee Miller, Andrew S. Pyle, Olivia Bauwens

Publications

Recent debates over policing have centered on the proper role of policing in society. Using the lenses of democratic policing and police legitimacy, we suggest that individuals’ willingness to call the police is one method for understanding the public’s consent to be policed and their view of the appropriate role of policing. This simple relationship is further complicated by differential relationships between willingness to cooperate with the police and four typologies of police legitimacy: trustworthiness, normative alignment, obligation to obey, and traditional legitimacy. Using the pretest and posttest of a survey vignette, we show that (1) individuals who legitimate the …

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

Regulating The Risks Of Ai, Margot E. Kaminski

Publications

Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.

This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …

Privacy Peg, Trade Hole: Why We (Still) Shouldn’T Put Data Privacy In Trade Law, Margot E. Kaminski, Kristina Irion, Svetlana Yakovleva

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No abstract provided.

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

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The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

The Politicization Of Criminal Prosecutions, Wadie E. Said

Publications

This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the …

Book Review, Staci J. Pratt

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No abstract provided.

Sex Exceptionalism In Criminal Law, Aya Gruber

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Sex crimes are the worst crimes. People generally believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes typically create a dedicated category for sex offenses, uniting under its umbrella conduct ranging from violent attacks to consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely elicits discussion, much less debate. Sex exceptionalism, however, is neither natural nor neutral, and its political history should give us pause. This Article is the first to trace, catalog, and analyze sex exceptionalism in criminal law …

Educate Or Litigate? The Mindsets Of Advancing Knowledge And Maintaining Financial Stability In Higher Education, Cherri Brown, Cheryl Lentz

Publications

The educational mindset for online higher degrees, specifically the master’s and doctoral journey, shifted from the refractive thinking perspective as transformational experiences, producing objective decision-making processes, to transactional business exchanges, and in some institutions, an exchange for investors and stakeholders. Nehrlich (2006) coined “transactional exchange” as an exchange of one thing for another involving some form of gain. This chapter presents the business of marketing higher education programs (i.e., master’s and doctoral degrees) and the front-line faculty positioned to achieve an institution’s profit margin derived from degree production. Our goal is to discuss the losses and gains when faculty, who …

Citational Practices As A Site Of Resistance And Radical Pedagogy: Positioning The Multiply Marginalized And Underrepresented (Mmu) Scholar Database As An Infrastructural Intervention, Cana Uluak Itchuaqiyaq, Jordan Frith

Publications

Discursive infrastructures are forms of writing that remain mostly invisible but shape higher-level practices built upon their base. This article argues that citational practices are a form of discursive infrastructure that are bases that shape our work. Most importantly, we argue that the infrastructural base built through citation practices is in a moment of breakdown as increasing amounts of people call for more just citational practices that surface multiply marginalized and underrepresented (MMU) scholar voices. Consequently, this article both theorizes citations as infrastructure while also focusing on a case study of the MMU scholar database to help build a more …

Using Knowledgeable Agents Of The Digital And Data Feminism To Uncover Social Identities In The #Blackgirlmagic Twitter Community, Golnaz Arastoopour Irgens

Publications

Online spaces have the capacity to be powerful informal learning and identity development spaces for marginalized communities. However, there is still much work to be done to uncover these complex social identities using ethical big data analyses. In this study, I draw on the theory of Knowledgeable Agents of the Digital, data feminism, and critical reflexivity practices to engage with a #blackgirlmagic Twitter dataset from 2016 to 2019. Using Epistemic Network Analysis, findings suggest that the #blackgirlmagic community self-defined their social identities around Black beauty, academic/professional accomplishments, and social justice. Because the women and girls of #blackgirlmagic were agentive in …

Set Up To Fail: Youth Probation Conditions As A Driver Of Incarceration, Jyoti Nanda

Publications

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision. Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions. The orders rely on standardized terms on youth probation condition forms. This is the first scholarly Article to excavate …

Criminal “Justice” As Racial Justice?, Aya Gruber

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No abstract provided.

Affirmative Consent, Aya Gruber

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No abstract provided.

Resistance Is Not Futile: Challenging Aapi Hate, Peter H. Huang

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This Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people's beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories about …

Roundtable Two: Environmental Law Education: New Techniques In The Classroom And Beyond, Lincoln Davies, Karrigan Bork, Sarah Krakoff

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No abstract provided.

United States, Aya Gruber

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No abstract provided.

A Taxonomy Of Silencing: The Law’S 100 Year Suppression Of The Tulsa Race Massacre, Suzette M. Malveaux

Publications

Over one hundred years have passed since the 1921 brutal massacre of Tulsa’s African American community. This notorious attack came at the hands of a white mob and with the government’s blessing. With numerous centennial commemorations behind us, what has been learned? The answer to this question is crucial to preventing similar atrocities in the future.

One lesson is how important it is to tell the story—to honor the voices of those who lived through one of the most infamous government-sanctioned racial attacks in U.S. history. Knowledge is power.

Another lesson is how pernicious the law can be in silencing …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Against Domestic Violence: Public And Private Prosecution Of Batterers, Carolyn B. Ramsey

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No abstract provided.

Victims’ Rights Revisited, Benjamin Levin

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This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

The First Step In Overhauling Criminal Justice? Abolish The Death Penalty, Rachel A. Van Cleave

Publications

Since the killing of George Floyd by a police officer, many changes to criminal justice have been proposed and some have been enacted. However, none of these reforms will be meaningful unless and until we require the government to dismantle the laws and procedures that implement the death penalty, an inherently biased and horrific practice. The fact that the federal government and twenty-seven states still have the death penalty reveals an attitude that is diametrically counter to the mindset necessary to end mass incarceration.

Web Of Incarceration: School-Based Probation, Jyoti Nanda

Publications

Close to three quarters of a million cases flow through the United States’ juvenile justice system annually. Juvenile probation is the most commonly utilized form of sentencing, yet juvenile probation has not been the focus of sustained research or analysis. This Article focuses on School-Based Probation, a type of juvenile probation program that was created to enroll youth before a criminal charge has been filed. Described by its proponents as a “voluntarily probation” program, pre-delinquent, or “at-risk,” youth are identified by on-site school probation officers and enrolled in a supervised program. Deemed to be problematic by many jurisdictions, this Article …

Women’S Perceptions Of The Aviation Workplace: An Exploratory Study, Lindsay Stevenson, Haydee Cuevas, Katya K. Rivera, Katie Kirkpatrick, Marisa Aguiar, Jorge L. D. Albelo

Publications

The purpose of this exploratory study was to garner a better understanding of the following research question: What factors may contribute to women’s retention in aviation occupations in the United States? The Aviation Occupation Survey was developed drawing from the published literature in organizational retention and diversity in aviation to explore this research question. The survey consisted of 50 Likert-scale items on nine subjects related to career retention. A total of 188 participants (women = 70, men = 118) completed the survey. Results revealed similarities between women and men on perceptions about numerous aspects of their workplace, particularly job satisfaction, …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

When We Breathe: Re-Envisioning Safety And Justice In A Post-Floyd Era, Aya Gruber

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10th Annual David H. Bodiker Lecture on Criminal Justice delivered on Wed., Oct. 21, 2020 at Ohio State University Moritz College of Law.

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Decarceration And Default Mental States, Benjamin Levin

Publications

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of …

Imagining The Progressive Prosecutor, Benjamin Levin

Publications

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …

Wage Theft Criminalization, Benjamin Levin

Publications

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …