Law Commons^™

Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "pre­sumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

Meta Rules For Ordinary Meaning, Anita S. Krishnakumar

Faculty Publications

(Excerpt)

“Ordinary meaning” is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a “reasonable reader” would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has come to dominate statutory interpretation, courts increasingly have employed dictionary definitions as (purportedly) neutral, and sometimes dispositive, evidence of ordinary meaning. And in the past few years especially, some judges and scholars have advocated using corpus linguistics — patterns of usage across various English …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Faculty Publications

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

The Cognitive Power Of Analogies In The Legal Writing Classroom, Patricia G. Montana

Faculty Publications

(Excerpt)

New law students traditionally learn better when they can connect what they are learning to a familiar non-legal experience. Therefore, the use of an analogy, which can be defined as a comparison showing the similarities of two otherwise unlike things to help explain an idea or concept, is an obvious way to facilitate a student’s connection between the new and what is already known. An analogy is a logical step in introducing the complex processes of legal research and analysis by attempting to simplify the alien structure of summarizing that legal research and analysis into a coherent piece of …

Cracking The Whole Code Rule, Anita S. Krishnakumar

Faculty Publications

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the …

Scarred: The True Story Of How I Escaped Nxivm The Cult That Bound My Life, Robin Boyle Laisure

Faculty Publications

(Excerpt)

Sarah Edmondson provides us with candid insight into the lure of NXIVM, a business built on the promise of empowering members to achieve their personal goals. In the aftermath of the federal criminal trial of the organization’s kingpin, Keith Raniere, we get a deeper understanding of how Raniere and his cadre of manipulators were able to entice people into believing that, by spending thousands of dollars on workshops and following the ever-changing rules of the organization, they would find success.

From Academic Freedom To Cancel Culture: Silencing Black Women In The Legal Academy, Renee Nicole Allen

Faculty Publications

In 1988, Black women law professors formed the Northeast Corridor Collective of Black Women Law Professors, a network of Black women in the legal academy. They supported one another’s scholarship, shared personal experiences of systemic gendered racism, and helped one another navigate the law school white space. A few years later, their stories were transformed into articles that appeared in a symposium edition of the Berkeley Women’s Law Journal. Since then, Black women and women of color have published articles and books about their experiences with presumed incompetence, outsider status, and silence. The story of Black women in the legal …

Charles Reich, New Dealer, John Q. Barrett

Faculty Publications

(Excerpt)

My encounters with Charles Reich began long before I had any personal contact with him. I read his 1970 bestseller The Greening of America late in that decade, when I was in high school. From then on, I always owned a copy of that book, until it would disappear in a move or on "loan" to some friend.

Luckily so many copies of Greening are in print that I easily would find it anew in used bookstores. So, I often restocked, reread in the book, and got to feel afresh the lift of Reich's spirit and his words.

Consider, …

Our Collective Work, Our Collective Strength, Renee Nicole Allen

Faculty Publications

This essay considers the collective strength of women of color in two contexts: when we are well represented on law school faculties and when we contribute to accomplishing stated institutional diversity goals. Critical mass is broadly defined as a sufficient number of people of color. Though the concept has been socially appropriated, its origins are scientific. While much of the academic literature encourages diversity initiatives designed to reach a critical mass, social change is not a science. Diversity in numbers may positively benefit individual experiences for women of color, however, diversity alone will not change social norms at the root …

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale— and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily …

Human Rights Reporting As Human Rights Governance, Margaret E. Mcguiness

Faculty Publications

Contrary to the view that the rejection of human rights treaty membership has left the United States outside the formal international human rights system, the United States has played a key role in international human rights governance through congressionally mandated human rights monitoring and reporting. Since the mid-1970s, congressional oversight of human rights diplomacy, which requires reporting on global human rights practices, has integrated international human rights law and norms into the execution of U.S. foreign policy. While the congressional human rights mandates have drifted from their original purpose to condition allocation of foreign aid, they have effectively embedded international …

Use Of Factors In Development Estimates: Improving The Cost Analysis Toolkit, Matthew R. Markman, Jonathan D. Ritschel, Edward D. White

Faculty Publications

Factor Estimating is a technique commonly used by defense acquisition analysts to develop cost estimations. However, previous studies developing factors for the Engineering and Manufacturing Development (EMD) phase of the life cycle are limited. This research expands the current toolkit for cost analysts by developing cost factors in previously unexplored areas. More specifically, over 400 cost reports are utilized to create new standard cost factors that are delineated by five categories: commodity type, contract type, contractor type, development type, and Service. The factors are developed for those elements that are common in a wide array of projects such as program …

Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett

Faculty Publications

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.

Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, from 1933 through 1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then, in early 1937, President Roosevelt proposed to “pack”—to enlarge—the Court, so that it would …

Victims, Right?, Anna Roberts

Faculty Publications

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks …

Preventing Predatory Alienation By High-Control Groups: The Application Of Human Trafficking Laws To Groups Popularly Known As Cults, And Proposed Changes To Laws Regarding Federal Immigration, State Child Marriage, And Undue Influence, Robin Boyle Laisure

Faculty Publications

In this article, I summarize some of the significant legal developments in the United States that have taken place within the past year. First, United States v. Raniere was a criminal case launched against the founder of a purported self-help organization, NXIVM, and several of his associates. The Raniere case established precedent for using the human-trafficking statutes, among other grounds, to pursue justice for victims of high-demand groups. Second, the number of asylum seekers is increasing annually, and some of these undocumented immigrants are escaping from their countries-of-origin cults, gangs, and other extremist groups. However, once they arrive in the …

When Public Defenders And Prosecutors Plea Bargain Race – A More Truthful Narrative, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and prosecutors can plea bargain race to yield more equitable justice outcomes.

I was invited to the discussion about criminal justice reform in plea bargaining, because of my work in dispute resolution, dispute system design, and discrimination. Plea bargaining is a justice system negotiation that is used in upwards of 97% of criminal case dispositions. Unlike many of my colleagues in criminal justice reform who have also had years of experience working in the criminal …

That Is Enough Punishment: Situating Defunding The Police Within Antiracist Sentencing Reform, Jalila Jefferson-Bullock, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago. One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls …

Reconstruction Sentencing: Reimagining Drug Sentencing In The Aftermath Of The War On Drugs, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the failed War on Drugs has to be among the top priorities. The forty years of treating drug law offenders as enemies of society have left us with decimated communities and have perpetuated a biased view of …

How The Fourth Amendment Frustrates The Regulation Of Police Violence, Seth W. Stoughton

Faculty Publications

Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not only the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers should recognize. Any other regulation of police violence is inappropriate and unnecessary. Ironically, though, the Constitution does not actually regulate the use of force. It regulates seizures. Some uses of force are seizures. This Article explains that a surprising number of others—including some police shootings—are not. …

Economic Regulation And Rural America, Ann M. Eisenberg

Faculty Publications

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization, and …

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

The End Of Comparative Qualified Immunity, Colin Miller

Faculty Publications

Critics have called qualified immunity an “unqualified disgrace,” an “abomination,” and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.” One particularly troubling aspect of qualified immunity is what I’ll call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his behavior wasn’t that much worse than conduct by a prior official that was deemed constitutional. In November 2020, the Supreme Court seemingly created a narrow exception to comparative qualified immunity in cases involving “particularly egregious facts.” In February 2021, however, the Supreme Court signaled that this was no …

Moral Bars To Intellectual Property: Theory & Apologetics, Ned Snow

Faculty Publications

Various intellectual creations are raising complex moral issues in intellectual property law. Videos of mass shootings made by perpetrators, statues of the Confederacy displayed openly, torture techniques used on criminal detainees, and devices for consuming illegal drugs are only a few examples. These expressive and inventive works pose the question of whether their apparent immoral nature should preclude intellectual property protection. Although courts and scholars have long debated moral values in intellectual property doctrines, the literature is largely silent on the effect of intellectual property theory. The question thus arises: Do the utilitarian, labor-desert, and autonomy theories of intellectual property …

Black Urban Ecologies And Structural Extermination, Etienne C. Toussaint

Faculty Publications

Residents of low-income, metropolitan communities across the United States frequently live in “food apartheid” neighborhoods—areas with limited access to nutrient-rich and fresh food. Local government law scholars, poverty law scholars, and political theorists have long argued that structural racism embedded in America’s political economy influences the uneven development of such Black urban ecologies. Accordingly, food justice scholars have called for local governments to develop urban agricultural markets that combat racism in global corporatized food systems by localizing food development. These demands have only amplified during the COVID-19 pandemic, which has ravaged Black communities where residents suffer from preexisting health conditions …

The Bounds Of Energy Law, Shelley Welton

Faculty Publications

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Market-Anticipatory Approaches To Rural Property Vacancy, Ann M. Eisenberg

Faculty Publications

No abstract provided.