Digital Commons Network^™

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

Establishment As Tradition, Marc O. Degirolami

Scholarly Articles

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Why Are We Not Worth Saving? Latin American Immigrant Women's Experiences With Post-9/11 Crimmigration Policies And Asylum-Seeking In The United States, Kaye Romans

Undergraduate Honors Theses

This thesis discusses Crimmigration—the convergence of criminal policies and immigration law—in a post-9/11 world as it relates to Latin American Immigrant women seeking asylum in the United States. Utilizing case law, legislation, and legal scholarship, I situate these policies in the broader context of immigration law both nationally and internationally, focusing on key post-9/11 legislation and policies such as Operation Streamline, Operation Liberty Shield, and Title 42, as well as key post-9/11 case law dealing with Latin American women seeking asylum in the United States. With these foundational understandings, I provide possible solutions that would lessen the harms presented to …

¿Por Qué No Vale La Pena Salvarnos? Experiencias De Mujeres Inmigrantes Latinoamericanas Con Políticas De Inmigración Post-9/11 Y Solicitantes De Asilo En Los Estados Unidos, Kaye Romans

Undergraduate Honors Theses

Esta tesis aborda la Crimmigration—la convergencia de las políticas criminales y la ley de inmigración—en un mundo post-9/11 en lo que se refiere a las mujeres inmigrantes latinoamericanas que buscan asilo en los Estados Unidos. Utilizando la jurisprudencia, la legislación y la erudición legal, sitúo estas políticas en el contexto más amplio de la ley de inmigración tanto a nivel nacional como internacional, centrándome en la legislación y políticas claves posteriores al 9/11 tales como la Operation Streamline, la Operation Liberty Shield y el Title 42, así como la jurisprudencia clave posterior al 9/11 que trata con las mujeres latinoamericanas …

Behind The Screen: Examining The Human Consequences And Constitutional Ramifications Of The Virtual Criminal Defendant, Mallory Kostroff

Washington and Lee Journal of Civil Rights and Social Justice

Defendants are waiting behind a screen to learn their fate in their criminal proceedings. This Note sounds the alarm that having incarcerated defendants appear virtually for their criminal proceedings will lead the criminal justice system further down a path of mass incarceration and destruction. This Note demonstrates and argues that there are no benefits for having an incarcerated defendant appear virtually because there are no real benefits to the defendant themselves. Courts further try to argue that video appearances are efficient as they save time and money but as this Note shows those arguments are misleading and miss the point …

Is Silence Golden?, Tracey Maclin

UF Law Faculty Publications

Absolute constitutional rights are rare—even the venerable rights of free speech and freedom of religion are not absolute. In criminal prosecutions, the Sixth Amendment’s right to counsel has been described as the most important of all rights because it affects a defendant’s ability to assert his or her other rights. But the right to counsel is not unlimited.

Yet one right is absolute. A criminal defendant has an absolute right not to testify in his own criminal trial. The text of the Self-Incrimination Clause of the Fifth Amendment—“no person . . . shall be compelled in any criminal case to …

Constitutional Law—Dobbs V. Jackson Women’S Health Organization Will Likely Have A Negative, Disproportionate Impact On Women Of Color And Reassert Inferiority, Makiya Turntine

University of Arkansas at Little Rock Law Review

No abstract provided.

Artificial Intelligence In Government: Risks And Challenges Of Algorithmic Governance In The Administrative State, Jose Vida Fernandez

Indiana Journal of Global Legal Studies

This article analyzes the legal implications of using artificial intelligence in government and how it is challenging the foundations of the administrative state. It begins by demonstrating that a new model of government is emerging, based on information and intelligence (i-Gov). To understand the nature and scope of this new i-Gov model, this article will explain what artificial intelligence really is and analyze the applications that are currently being carried out in the US and the EU. Next, it will review the regulatory framework that is emerging that regulates government use of artificial intelligence in both the US and the …

Asymmetries, Norm Matching, And The Pursuit Of Equity Between The Police And The Public, Eang Ngov

Faculty Articles

Concerns about police abuse and overcriminalization are on the forefront of public conscientiousness. In spite of the Black Lives Matter movement and calls for police reform, law enforcement officials enjoy a variety of criminal procedure loopholes and double standards, which the United States Supreme Court has ratified through its creation of the open fields, mistake of law, and third party doctrines, as well as its acceptance of deceptive police practices. This Article analyzes the asymmetries between permissible civilian conduct and permissible police conduct to make a broader, systemic critique of the double standards and loopholes that pervade constitutional criminal procedure. …

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Articles

Speech is more than just an individual right-it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights - either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines …

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

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 the 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 …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …

On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, Tracy Hresko Pearl

Indiana Law Journal

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional, paper counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology as well, arguing that use of these systems will increase the number of warrants issued throughout the United …

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

The Law Enforcement Lobby, Stephen Rushin, Zoe Robinson

Faculty Publications & Other Works

The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby operates largely without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that often institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the …

Sex Offenders And Internet Speech: First Amendment Protections For America's Most Reviled Outcasts, Gabriel Aderhold

Mitchell Hamline Law Review

No abstract provided.

Foreword: Looking Back To Move Forward: Exploring The Legacy Of U.S. Slavery, Suzette Malveaux

University of Colorado Law Review

No abstract provided.

Shades Of Justice: Racial Profiling Then And Now, F. Michael Higginbotham

University of Colorado Law Review

No abstract provided.

Slave Law, Race Law, Gabriel J. Chin

University of Colorado Law Review

No abstract provided.

The Rule Of Law Under Challenge: The Enmeshment Of National And International Trends, Gregory Shaffer, Wayne Sandholtz

Georgetown Law Faculty Publications and Other Works

The goal of the rule of law is to protect individuals from the arbitrary exercise of power. Democracy and human rights depend on the rule of law. But today the rule of law is under growing threat in the United States and around the world. Trends regarding rule-of-law protections are transnational in scope. They involve shifting norms, institutions, and practices at the local, national, and international levels. This paper assesses how challenges are taking place at the international and national levels, and how these challenges are linked. It examines the ways in which international law and institutions are important for …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

Publications

The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

Kahler V. Kansas: How The Current Insanity Defense Regime Underserves Postpartum Psychosis Defendants, How The Supreme Court Failed To Act, And How Now Is The Perfect Time To Implement A Gender-Specific Postpartum Defense, Victoria Frazier

St. Mary's Law Journal

No abstract provided.

Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq

Journal of Race, Gender, and Ethnicity

This Note will discuss some of the Commission’s findings and other interesting suggestions to determine whether it is possible to rein in the modern-day Court. Part I will explain the inherently political nature of the Supreme Court. Part II will briefly present how the Supreme Court acquired its power. Part III will discuss several prominent proposals for Supreme Court reform. Finally, Part IV will examine whether any recommendations may depoliticize the Court.

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …