Law Commons^™

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.

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

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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 …

Wage Theft Criminalization, Benjamin Levin

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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 …

Policing And "Bluelining", Aya Gruber

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In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals that it was never mainly about …

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

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Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

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No abstract provided.

The Troubling Alliance Between Feminism And Policing, Aya Gruber

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No abstract provided.

De-Democratizing Criminal Law, Benjamin Levin

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No abstract provided.

What's Wrong With Police Unions?, Benjamin Levin

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In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

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No abstract provided.

#Metoo And Mass Incarceration, Aya Gruber

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This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime …

Do Abolitionism And Constitutionalism Mix?, Aya Gruber

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No abstract provided.

The Left's Law-And-Order Agenda, Aya Gruber

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No abstract provided.

Mens Rea Reform And Its Discontents, Benjamin Levin

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This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …

Recording As Heckling, Scott Skinner-Thompson

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A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

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It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

Criminal Employment Law, Benjamin Levin

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This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

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This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

Firearms In The Family, Carolyn B. Ramsey

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This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of …

Values And Assumptions In Criminal Adjudication, Benjamin Levin

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This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account …

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

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No abstract provided.

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

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In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

The Concept Of "Less Eligibility" And The Social Function Of Prison Violence In Class Society, Ahmed A. White

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No abstract provided.

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

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First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …

Communicating During Emergencies: Toward Interoperability And Effective Information Management, Philip J. Weiser

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The suboptimal state of communications technology used by public safety agencies has emerged as a high profile political issue. In most cases, public safety agencies are able only to communicate using antiquated networks, engineered solely for providing voice communications and unable to interoperate beyond a select number of users. This type of system fails to provide the type of economies of scale, network flexibility, or the broader functionalities routinely used by the military and private sector enterprises. The challenge facing policymakers is thus how to develop a next generation architecture for public safety and spur adoption of a new set …

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

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For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person's Afro-centric features. Section I of the article describes a line of social science research that shows that a person's Afro-centric features have a strong biasing effect on judgment such …

Wrongful Convictions And The Accuracy Of The Criminal Justice System, H. Patrick Furman

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No abstract provided.

A Moving Violation? Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, L. Buckner Inniss

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No abstract provided.

Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi

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No abstract provided.

Rule Of Law And The Limits Of Sovereignty: The Private Prison In Jurisprudential Perspective, Ahmed A. White

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No abstract provided.