Digital Commons Network^™

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

Maintaining The Delicate Balance Between Due Process And Protecting Reporting Students From Re-Traumatization During Cross-Examination: Title Ix Investigations In The Wake Of The Trump Administration's Proposed Regulations, Lauren Bizier

Roger Williams University Law Review

No abstract provided.

Gatekeeping The Profession, Christopher Williams

Cardozo Journal of Equal Rights & Social Justice

The article argues that the U.S. model of legal education functions as a racial gatekeeper, perpetuating inequality by adopting and exacerbating societal prejudices. It highlights how structural mechanisms within legal education, such as standardized testing, admission processes, and socialization, disproportionately exclude and marginalize students of color, particularly black students, mirroring the experiences of Dalits in India's legal education system. The author introduces the concept of "adoptive prejudice," where legal education systems adapt and embed societal hierarchies, leading to systemic exclusion and disparity.

#Livingwhileblack: Blackness As Nuisance, Taja-Nia Y. Henderson, Jamila Jefferson-Jones

American University Law Review

No abstract provided.

Discarded Loyalty: The Deportation Of Immigrant Veterans, Deenesh Sohoni, Yosselin Turcios

Lewis & Clark Law Review

The United States has a long history of using the foreign born to meet its mil- itary demands. For many immigrants, military service served both as a way to demonstrate loyalty to their adopted country, and to facilitate their naturali- zation process. However, over the past several decades an increasing number of foreign-born veterans have found themselves being deported, despite their honorable service, for having committed criminal acts. In many cases, these veterans were never given a chance to contest their deportations due to their status as non-citizens. This Article compares the deportation of non-citizen veterans today, with the failure …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents, Angela Onwuachi-Willig, Catherine E. Smith, Tanya Washington Hicks, Lauren Fontana, Jessica Dixon Weaver, Cary Martin Shelby

Faculty Scholarship

This Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents filed in Fulton v. City of Philadelphia makes two points. First, a categorical exemption, based on religious beliefs rather than foster children’s needs, does not serve the best interests of children and violates the government’s duty to foster youth. Such an exemption needlessly restricts the pool of prospective foster parents, increasing the risk of a greater number of children being confined to long-term, institutional care. The reduction of same-sex foster parents would also have a disproportionate impact on “special needs” and LGBT …

Equality Is A Brokered Idea, Robert L. Tsai

Faculty Scholarship

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Race, Rights, And The Representation Of Children, Barry Feld, Perry Moriearty

American University Law Review

No abstract provided.

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm

Faculty Scholarship

Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to shoring up …

America's Paper Prisons: The Second Chance Gap, Colleen Chien

Michigan Law Review

Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and …

All Faiths & None: A Guide To Protecting Religious Liberty For Everyone, Elizabeth Reiner Platt, Katherine M. Franke, Keisha E. Mckenzie, Katharine Rhodes Henderson

Faculty Scholarship

Religious liberty rights have been immeasurably damaged over the past several years — often in the name of protecting religious liberty.

Government officials have embraced Islamophobic policies and rhetoric; shut the door on refugees fleeing religious persecution; elevated the religious rights of their political allies over the rights — religious and otherwise — of other communities; used religion as a tool of economic deregulation; and denigrated the beliefs of religious minorities, atheists, and religious progressives.

To achieve true freedom for those of all faiths and none, a complete overhaul of religious liberty policy, and a new understanding of what this …

Voter, Jefferson S. Arak

Capstones

Ron Pierce, on parole in New Jersey, fights for a state bill that would re-enfranchise himself and 100,000 other New Jerseyans with criminal convictions.

Taught at a young age that voting is a duty to one's community, Ron works tirelessly to make sure that the fundamental right to vote does not leave New Jersey's neediest without a voice.

Meanwhile, state lawmakers may need to compromise their efforts to restore the right to vote in the face of political opposition.

Finding Justice, Hannah Miller

Capstones

Finding Justice tackles the devastation caused by wrongful conviction through the journey of Jeffrey Deskovic. After serving 16 years in prison for a murder he didn’t commit, Deskovic has strived to rebuild his life. The film follows him as he finishes law school and runs a foundation that frees the wrongfully convicted, all while dealing with lingering trauma.

Who Ya Gonna Call? An Analysis Of Paradigm Shifts And Social Harms As A Result Of Hyper-Viral Police Violence, Ariana H. Aboulafia

University of Miami Race & Social Justice Law Review

No abstract provided.

The Failings Of Title Ix For Survivors Of Sexual Violence: Utilizing Restorative Justice On College Campuses, Katie Vail

Washington Law Review

Universities should adopt restorative justice practices to serve the legal and personal needs of student survivors of sexual violence. Title IX prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Since 1997, the Department of Education’s Office for Civil Rights has issued “Dear Colleague Letters” to federally funded institutions to assist with Title IX compliance and implement procedures for complaints of sexual violence. In 2011, Assistant Secretary for Civil Rights Russlyn Ali under the Obama administration issued a Dear Colleague Letter, which expanded protections for survivors. However, it prohibited the …

Sexual Assault By Federal Actors, #Metoo, And Civil Rights, Julie Goldscheid

Washington Law Review

Calls for accountability for gender violence have permeated public discourse in the aftermath of the #MeToo movement. While much attention has focused on high profile individuals accused of harassment, less attention has been paid to sexual assaults of more vulnerable and marginalized people, including low wage workers, lesbian, gay, bisexual, transgender and gender non-conforming people, and immigrants. In addition, at the same time that calls for accountability have targeted Hollywood, employers, universities, and even the Catholic church, relatively little outcry has focused on the longstanding and under-recognized problem of sexual assaults by government actors. This Article focuses on sexual assault …

The Legalization Of Restorative Justice: A Fifty-State Empirical Analysis, Thalia González

Utah Law Review

This Article addresses the increasing formal legal nature of restorative justice in the United States. Over the last three decades, a substantial body of research has demonstrated the ways in which restorative justice offers an alternative societal response to crime and harm. It has also examined how restorative justice empowers individuals and groups to address violence, respond to social, political and economic injustice, and engage in resistance to existing structural inequities. Yet a prominent gap in the field exists: a comprehensive theoretical and empirical examination of the codification of restorative justice in state law. Studies of this nature are essential …

“Disturbing Schools” Laws: Disturbing Due Process With Unconstitutionally Vague Limits On Student Behavior, Rachel Smith

Journal of Law and Policy

For over a century, the United States Supreme Court has held, in sum and substance, that students do not “shed their constitutional rights . . . at the schoolhouse gate.” In practice, however, while not shed entirely, many of those rights have been increasingly limited. “Disturbing Schools” Laws subject students to criminal charges for behaving in a distracting or obnoxious manner on campus—behavior which can easily be conceptualized as typical adolescent behavior. Challenges to Disturbing Schools Laws have resulted in opposing outcomes across Circuit Courts. This Note discusses how students may use the Fourth Circuit case Kenny v. Wilson to …

Racial Prejudice In The Criminal Justice System, Tori Cooper

Jessie O'Kelly Freshman Essay Award

Racial prejudice against African Americans has been the leading cause of high incarceration rates amongst the African American community. Within the United States, the census reported that African Americans make up about 17.9 percent of the population, with one-third of the people making up the incarcerated population in America. The disparity in those numbers highlights the current situation that is plaguing the nation. Blatant cases of racial profiling that have received media attention are a true testament of the broken law enforcement system from coast to coast. Racial prejudice cases have affected the black American community since the beginning of …

A Modest Proposal: The Federal Government Should Use Firing Squads To Execute Federal Death Row Inmates, Stephanie Moran

University of Miami Law Review

The Eighth Amendment prohibits cruel and unusual punishment in the criminal justice system. As the federal government looks to reinstate the death penalty, this Note argues that it should include firing squad as an option for carrying out executions. While firing squads may shock the senses, this Note argues that they are in fact the only way to comport with the requirements of the Eighth Amendment.

Evidence’S #Metoo Moment, Aníbal Rosario-Lebrón

University of Miami Law Review

The #MeToo movement has drawn attention to the prevalence of sexual and gender-based violence. But more importantly, it has exposed how society discounts the testimony of women. This Article unfolds how this credibility discounting is reinforced in our evidentiary system through the use of character for untruthfulness evidence to impeach victims. Specifically, through defense attorneys’ practice of impeaching sexual and gender-based violence victims’ character for truthfulness as a way to introduce functional evidence of credibility biases regarding the trustworthiness of sexual and gender-based violence victims and the plausibility of their testimonies. The Article further shows a correlation between the poor …

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

The Master's Tools Will Never Dismantle The Master's House: Kavanaugh's Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Journal of Civil Rights and Economic Development

(Excerpt)

This essay proceeds in four parts. In Part I, I problematize the idea of the accused’s demeanor as evidence of guilt, remorse, or entitlement, arguing that we tend to overestimate our ability to deduce internal states of mind from people’s behavior and expressions. Part II assesses the potential (or lack thereof) of public performances of reckoning to produce a valuable expression of remorse, discussing the value of contingent apologies. Part III expands the framework to examine the way our politically fractured field responds to partisan efforts to excoriate culprits, arguing that “starting a national conversation” on the basis of …

Children Of A Lesser God: Reconceptualizing Race In Immigration Law, Sarah L. Hamilton-Jiang

Northwestern Journal of Law & Social Policy

The increased public exposure to the experiences of Latinx unaccompanied children seeking entry at the United States southern border has revealed the lived reality of the nation’s pernicious immigration laws. The harrowing experiences of unaccompanied children are amplified by their interaction with a legal system plagued by a legacy of systemic racism and sustained racial caste. While immigration law currently affords minimal legal protections for these children, in application, the law continues to fall egregiously short of providing for the safety of unaccompanied children. Though critics have long attested to the legal system’s neglect of unaccompanied children, subsequent legal analysis …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Gender Disparities In Plea Bargaining, Carlos Berdejo

Indiana Law Journal

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This Article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this Article reveal significant gender …

Making The Leap From Bullying To Equality: An Analysis Of Transgender Student Rights, Nathan Ades

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and political landscape surrounding transgender students' rights, particularly under Title IX, following the withdrawal of Obama-era guidelines by the Trump administration. This withdrawal has led to significant legal confusion and variability in protections across jurisdictions. The analysis suggests that advocating for antibullying policies may offer a more effective strategy for advancing transgender rights, especially in conservative states, by avoiding direct confrontation with gender identity issues.

Federal Criminal Risk Assessment, Brandon L. Garrett

Cardozo Law Review

No abstract provided.