Law Commons^™

Rico's Long Arm, Randy D. Gordon

Faculty Scholarship

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …

A Crazy Quilt: Infanticide In The United States, Susan Ayres

Faculty Scholarship

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust …

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Mass E-Carceration: Electronic Monitoring As A Bail Condition, Sara Zampierin

Faculty Scholarship

Over the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects …

Defeating De Facto Disenfranchisement Of Criminal Defendants, Neil Sobol

Faculty Scholarship

In a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020.

While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants …

Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon

Faculty Scholarship

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …

Letting Offenders Choose Their Punishment?, Gilles Grolleau, Murat C. Mungan, Naoufel Mzoughi

Faculty Scholarship

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the …

Criminal Court System Failures During Covid-19: An Empirical Study, Cynthia Alkon

Faculty Scholarship

How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months. Criminal courts in the United States rely on in-person proceedings and formal and informal in-person communications to manage caseloads. The survey results detail, in ways not previously fully understood, how crucial these in-person communications are and how ill-prepared the criminal courts and legal professionals were to deal with the …

Jurisdictional Elements And The Jury, G. Alexander Nunn

Faculty Scholarship

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, …

Proxy Crimes, Piotr Bystranowski, Murat C. Mungan

Faculty Scholarship

“Proxy crimes” is a phrase loosely used to refer to conduct that is punished only as a means to target other harmful conduct. Many criminal law scholars find the criminalization of this type of conduct unjustifiable from a retributivist perspective, while others note that proxy criminalization can contribute to mass incarceration and overcriminalization. Given the importance of these problems, a systematic analysis of proxy crimes, currently absent in the criminal law literature, is needed.

In this article, we provide a comprehensive analysis of proxy crimes by (i) surveying the existing literature and identifying gaps in prior analyses, (ii) proposing a …

Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon

Faculty Scholarship

The Racketeer Influenced and Corrupt Organizations Act (RICO) came into the world in 1970, a time of great social upheaval that was accompanied by shifting attitudes towards both crime and civil litigation. From the outset, the statute’s complexity, ambiguity, and uncertain purpose have confounded courts and commentators. At least some doubts as to the statute’s meaning and application arise because it has criminal and civil components that subject it to the twin—yet antithetical—social impulses to be “tough on crime” while containing a perceived “litigation explosion.” In this Article, I situate RICO in this larger context and offer that context as …

Bargaining Without Bias, Cynthia Alkon

Faculty Scholarship

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that …

Visible Policing: Technology, Transparency, And Democratic Control, Hannah Bloch-Wehba

Faculty Scholarship

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand—let alone set limits on—new investigative methods and techniques for two major reasons. First, new surveillance technology tends to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. Second, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance relatively free of scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions …

Transparency's Ai Problem, Hannah Bloch-Wehba

Faculty Scholarship

A consensus seems to be emerging that algorithmic governance is too opaque and ought to be made more accountable and transparent. But algorithmic governance underscores the limited capacity of transparency law—the Freedom of Information Act and its state equivalents—to promote accountability. Drawing on the critical literature on “open government,” this Essay shows that algorithmic governance reflects and amplifies systemic weaknesses in the transparency regime, including privatization, secrecy, private sector cooptation, and reactive disclosure. These deficiencies highlight the urgent need to reorient transparency and accountability law toward meaningful public engagement in ongoing oversight. This shift requires rethinking FOIA’s core commitment to …

The Political Economy Of Enforcer Liability For Wrongful Police Stops, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and consequently, that excessive policing practices emerge in equilibrium.

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The goal of …

Inside The Master's Gates: Resources And Tools To Dismantle Racism And Sexism In Higher Education, Susan Ayres

Faculty Scholarship

The spring of 2020 saw waves of protest as police killed people of color. After George Floyd’s death, protests erupted in over 140 cities. The systemic racism exhibited by these killings has been uncontrollable, hopeless, and endless. Our country is facing a national crisis. In response to the police killings, businesses, schools, and communities held diversity workshops across the nation, and businesses and organizations posted antiracism statements. Legislators and City Councils introduced bills and orders to defund police and to limit qualified immunity. As schools prepared for the fall semester, teachers considered ways to incorporate antiracism materials into the curriculum. …

Predictable Punishments, Brian Galle, Murat C. Mungan

Faculty Scholarship

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we present elsewhere, we show that …

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

Have Problem-Solving Courts Changed The Practice Of Law?, Cynthia Alkon

Faculty Scholarship

Thirty years after the start of the first drug court, it is a good time to examine what the problem-solving court movement has contributed to our criminal legal system overall. It is also a good time to ask what it would look like if these courts had made "monumental change" in our criminal legal system. This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration. Next this article will discuss how problem-solving courts work, including by looking at the roles of the professionals, the judges and …

The Lost Promise Of Lambert V. California, Cynthia Alkon

Faculty Scholarship

This Article will start with a brief overview of the Lambert case. It will then discuss the differing views on how to interpret this relatively short case. Next, it will review the cases citing to Lambert that illustrate the narrow approach that courts have taken when applying this case. Finally, it will offer some thoughts on how Lambert could have played a role in preventing some of the excesses of mass incarceration, but failed.

Assigned Counsel Mentoring Programs: Results And Lessons From Two Pilot Projects, Susan Saab Fortney

Faculty Scholarship

Working with a team of three subject matter experts, the National Legal Aid and Defender Association implemented and evaluated two pilot mentoring projects aimed at helping lawyers who serve as assigned counsel. This report discusses the program design, evaluation outcomes, and offers guidance through lessons learned for other jurisdictions interested in introducing assigned counsel mentoring programs. The author of the report was the principal investigator who evaluated the programs.

This project was supported by grant number 2015-AJ-BX-K043 awarded by the Bureau of Justice Assistance, Office of Justice Programs to the National Legal Aid and Defender Association. The opinions, findings, and …

Beyond The Witness: Bringing A Process Perspective To Modern Evidence Law, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

The focal point of the modern trial is the witness. Witnesses are the source of observations, lay and expert opinions, authentication, as well as the conduit through which documentary, physical, and scientific evidence is introduced. Evidence law therefore unsurprisingly concentrates on – or perhaps obsesses over – witnesses. In this Article, we argue that this witness-centered perspective is antiquated and counterproductive. As a historical matter, focusing on witnesses may have made sense when most evidence was the product of individual observation and action. But the modern world frequently features evidence produced through standardized, objective, and even mechanical processes that largely …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Counter-Revolutionary: Liberalism, Capital Punishment, And The Next Step Forward, Jason G. Tiplitz

Student Scholarship

Capital punishment is anathema to liberal notions of human rights and civil liberties. It is time to finally cast it aside as an anachronistic vestige of bygone times. The death penalty is fundamentally incompatible with a truly liberal state.

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

287(G) Agreements In The Trump Era, Huyen Pham

Faculty Scholarship

Articulated as a priority in President Trump’s executive orders, his administration has forcefully pushed to sign more 287(g) agreements (and more aggressive forms of those agreements) with local law enforcement agencies (LEAs). In the summer of 2017, the administration signed eighteen new agreements in the state of Texas alone. At the end of 2017, there were at least thirty-eight other LEAs interested in joining the program. Once these agreements come online, the result will be more local law enforcement officers deputized to enforce immigration laws than have ever existed in the history of the 287(g) program.

What are the implications …

Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen

Faculty Scholarship

We examined medico-legal collaboration regarding dangerous sex offenders where state legislators have adopted statutes that determine the criteria for commitment to and discharge from civil commitment programs. The application of these statutes relies on medical diagnoses of pathologies such as paraphilia, anti-social personality disorder, and pedophilia along with prognoses for cure or recidivism. In our study, we examined court opinions from commitment hearings and observed a trial in federal court on the constitutionality of these commitments. We found that one result of this medico-legal collaboration is the marginalization or othering of sex offenders by essentializing, dividing, shaming, and impeaching them. …

Book Review: Justice Triage, Milan Markovic

Faculty Scholarship

Benjamin Barton and Stephanos Bibas’s new book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, is an eloquent exemplar of the deregulation literature. What sets Rebooting Justice apart from other works in the genre is that Barton and Bibas do not treat deregulation as a panacea. Their starting point is that Americans are not well served by lawyers’ monopoly over the legal services market, but they do not envision a world in which every legal problem is resolved ably and efficiently. Their goal is much more modest: a less complex legal system in which lawyer …

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …