Law Commons^™

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

Faculty Articles

In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Redistributing Justice, Benjamin Levin, Kate Levine

Faculty Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Faculty Articles

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

Constitutional Crimes, Michael L. Smith

Faculty Articles

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt …

Library Crime, Michael L. Smith

Faculty Articles

Libraries are often idealized as one of the few remaining safe, public spaces. Beyond providing books and internet access, they are a source of shelter, warmth, restrooms, and a place to stay without a reason for society's most vulnerable. But libraries are also at the core of a network of criminal laws that punish a wide array of library-related conduct. Steal a book? Write in or otherwise damage materials? Fail to return an item? Hide a book in a manner that looks like you are about to steal it? Many states criminalize these activities, often punishing them with potential jail …

Title Theft, Stewart E. Sterk

Faculty Articles

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and …

Public Defenders As Gatekeepers Of Freedom, Alma Magaña

Faculty Articles

Nearly half a million people are currently held in pretrial detention across the United States. Legal scholarship has explored many of the actors and factors contributing to the deprivation of freedom of those presumed innocent. And while the scholarship in these areas is rich, it has primarily focused on certain system actors—including judges, prosecutors, and profit-seeking sheriffs—structural concerns, such as the role race plays in who is being held in pretrial detention, or critiques of the failed promise of algorithms to deliver on bias-free bail determinations. But relatively little scholarship exists about the contributions of public defenders to this deprivation. …

Inventing Deportation Arrests, Lindsay Nash

Faculty Articles

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Faculty Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Why Criminal Defendants Cooperate: The Defense Attorney's Perspective, Jessica A. Roth, Anna D. Vaynman, Steven D. Penrod

Faculty Articles

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District …

Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert

Faculty Articles

This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …

No Sense Of Decency, Kathryn E. Miller

Faculty Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire

Faculty Articles

In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ …

The Public Voice Of The Defender, Russell M. Gold, Kay L. Levine

Faculty Articles

For decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations—all of which inflict severe harm on defendants and their …

The Market For Corporate Criminals, Andrew K. Jennings

Faculty Articles

This Article identifies problems and opportunities at the intersection of mergers and acquisitions (M&A) and corporate crime and compliance. In M&A, criminal successor liability is of particular importance, because it is quantitatively less predictable and qualitatively more threatening to buyers than successor liability in tort or contract. Private successor liability requires a buyer to bear bounded economic costs, which can in turn be reallocated to sellers via the contracting process. Criminal successor liability, however, threatens a buyer with non-indemnifiable and potentially ruinous punishment for another firm’s wrongful acts.

This threat may inhibit the marketability of businesses that have criminal exposure, …

Idaho's Law Of Seduction, Michael L. Smith

Faculty Articles

Seduction is a historical cause of action that permitted women's fathers to bring suit on their daughters' behalf in sexual assault and rape cases. This tort emerged long ago when the law's refusal to recognize women's agency left this as the only means of recovering damages in these cases. As time went on, the tort evolved, and women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could be easily forgiven for thinking that such an archaic tort …

Title Theft, Stewart E. Sterk

Faculty Articles

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and …

Resurrecting Arbitrariness, Kathryn E. Miller

Faculty Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

The Progressive Love Affair With The Carceral State, Kate Levine

Faculty Articles

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Faculty Articles

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Faculty Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Countermajoritarian Criminal Law, Michael L. Smith

Faculty Articles

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people's actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Steering Loan Modifications Post-Pandemic, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

Faculty Articles

As part of federal and state relief programs created during the COVID-19 pandemic, many American households received pauses on their largest debts, particularly on mortgages and student loans. Others may have come to agreements with their lenders, likewise pausing or altering payment on other debts, such as auto loans and credit cards. This relief allowed households to allocate their savings and income to necessary expenses, like groceries, utilities, and medicine. But forbearance does not equal forgiveness. At the end of the various relief periods and moratoria, people will have to resume paying all their debts, the amounts of which may …

Making Deflection The New Diversion For Drug Offenders, Kay L. Levine, Joshua C. Hinkle, Elizabeth Griffiths

Faculty Articles

The argument unfolds as follows. In Part I, we describe the origins and operation of deflection programs that currently exist in the United States and present the published empirical evidence about their effect on recidivism rates, as well as police and user population responses to them. We specifically discuss the LEAD template from Seattle, in addition to other models in Massachusetts and Texas. In Part II, we take a closer look at how conventional policing differs from the pre-arrest diversion program that was recently instituted in Atlanta. Using data from an original dataset of all 2012 felony drug arrests in …

Victims’ Rights In The Diversion Landscape, Kay L. Levine

Faculty Articles

In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …

Entitlement To Punishment, Kyron J. Huigens

Faculty Articles

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …

Fraudulent Malattributed Comments In Agency Rulemaking, Michael Herz

Faculty Articles

A specter is haunting notice-and-comment rulemaking—the specter of fraudulent comments. The stand-out example—the apotheosis—was the Federal Communications Commission’s (FCC) net neutrality rulemaking in 2017. Well over twenty million comments were submitted, but millions of those were highly suspect. It turns out only about 800,000 of those comments were unique—that is, not written by a computer and not a pre-written form letter or variation thereof. And of the rest, perhaps half were submitted by computers (bots) using fictitious names or the names of real people, living and dead, who had no connection to the comment.

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims' Rights (White Paper), David A. Schlueter, Lisa Schenck

Faculty Articles

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, …