Social and Behavioral Sciences Commons^™

Schoolhouse Rap, Andrea L. Dennis

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Rap on Trial, the treatment of rap music as evidence in the American criminal legal process, is well-documented and increasingly scrutinised. Research has shown that – with little restraint – police, prosecutors, probation officers and judges use rap lyrics to investigate, prosecute and punish individuals. Less noticed is that a similar phenomenon is occurring in the American K–12 educational system, which disciplines school-age youth who participate in rap culture and sometimes refers them to the juvenile or criminal legal systems for additional punishment. This article describes and analyses a small set of identified cases of this scenario, demonstrating that rap …

Remarks, Andrea L. Dennis

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Over the course of one week, the Michigan Journal of Law Reform presented its annual Symposium, this year titled Reimagining Police Surveillance: Protecting Activism and Ending Technologies of Oppression. During this week, the Journal explored complicated questions surrounding the expansion of police surveillance technologies, including how police and federal agencies utilize their extensive resources to identify and surveil public protest, the ways in which technology employed by police is often flawed and disparately impacts people of color, and potential reforms of police surveillance technology. Before delving into these complicated questions, I presented remarks on the history of police surveillance in …

Systemic, Racial Justice-Informed Solutions To Shift "Care" From The Criminal Legal System To The Mental Health Care System, Sarah Vinson, Andrea L. Dennis

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The current configuration and function of U.S. societal structures drives the overrepresentation of people with serious mental illness in the criminal legal system. Although the causes are multifactorial, the mental health system poorly serves those at highest risk of criminal legal system involvement. The growth of the mental health evidence base regarding the social determinants of mental health has ushered in greater understanding of their central role in the promotion and maintenance of mental illness and health. These academic strides, however, have failed to translate into widespread care and payment policy changes. Additionally, as is the case in the criminal …

The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

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This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …

The Problem With Misdemeanor Representation, Erica J. Hashimoto

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The failure to appoint counsel in misdemeanor cases may represent one of the most widespread violations of federal constitutional rights in criminal cases. A decade ago, in Alabama v. Shelton, the Supreme Court held that indigent defendants sentenced to suspended terms of incarceration in misdemeanor cases have a constitutional right to appointed counsel, even if the defendant is never actually incarcerated. Several factors contribute to this omission. First, some jurisdictions have simply refused to honor the Court's holding. Second, potentially unconstitutional barriers to the appointment of counsel-including prohibitively high fees imposed on defendants, failures to fully inform defendants of their …

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

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This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for …

Fidelity To Law And The Moral Pluralism Premise, Katherine R. Kruse

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In Fidelity to Law, Wendel presents and defends a comprehensive theory of legal ethics with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society; and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. This review essay questions Wendel’s move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society on both practical and theoretical grounds. Practically, it argues that law lacks the capacity to …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli

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Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his …

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

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This article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory.

Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At …

A Future Foretold: Neo-Aristotelian Praise Of Postmodern Legal Theory, Francis J. Mootz Iii

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Postmodern thinking puts severe stress on the project of legal theory. The philosophical critique of grand narratives, coupled with the radically pragmatic return to localized practices, has rendered theorizing suspect. Theory appears to be a quaint vestige of previous "bad faith" refusals to accept the finitude of human existence. But the postmodern position is even more complex, because postmodern anti-theorists tend to employ perplexing jargon and wield sophisticated and obscure concepts in their work. The postmodern puzzle is whether one can challenge theory without theorizing. Is theory defined by its practical effects, or by its refusal to become complicit in …

Rhetorical Knowledge In Legal Practice And Theory, Francis J. Mootz Iii

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Rhetorical Knowledge in Legal Practice and Critical Legal Theory has just been published by the University of Alabama Press as part of its series, Rhetoric, Culture and Social Critique. My central themes are that rhetorical knowledge - however imperfectly pursued and attained - is a feature of social life; that rhetorical knowledge plays an important role in legal practice; and that legal critique is appropriately grounded by the normative injunction to maximize the generation of and reliance on rhetorical knowledge in the administration of justice by legal actors. If nothing else, I want to make clear that by recovering and …

The Paranoid Style In Contemporary Legal Scholarship, Francis J. Mootz Iii

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This paper criticizes Pierre Schlag's postmodern legal theory by arguing that his idealized critic exhibits the style of functioning that we commonly would attribute to a paranoid individual. The paper concludes that a dialogical model of postmodern thought inspired by Hans-Georg Gadamer's philosophical hermeneutics provides a more helpful basis for contemporary legal theory.

The Ontological Basis Of Legal Hermeneutics: A Proposed Model Of Inquiry Based On The Work Of Gadamer, Habermas And Ricoeur, Francis J. Mootz Iii

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This paper provides a detailed account of Gadamer's philosophical hermeneutics and its relationship to contemporary problems in legal theory. I first demonstrate that Gadamer's approach charts a course between the inflated claims of critical legal studies and the subjectivism of the law and literature movement. I then interrogate the hermeneutical approach from the perspective of Habermas's critical theory. I conclude that Ricoeur's intervention in the Gadamer-Habermas debate helps significantly to draw out the critical elements of Gadamer's work. I conclude by developing new model of legal practice and theory grounded in the textuality of law.