Digital Commons Network^™

Investing In Abolition, Sandeep Singh Dhaliwal

Faculty Publications

This Article situates the prison within a broader macro-financial trend, what I call “community capture.” As private equity firms have consolidated the market for carceral services, they have also gained control over other essential social infrastructure, like housing and healthcare. By layering debt, fees, and aggressive profit expectations over companies or assets that provide for basic needs, their strategies intensify the economic pressures communities face. These strategies rely on various forms of coordination and legal protection from contestation. To demonstrate this process in the context of mass incarceration, this Article tells the story of Securus, a dominant carceral service company …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

Akron Law Faculty Publications

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third- party ambush. Officers and indi viduals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country. There is an easier way. The Supreme Court has recently reaffirmed its support …

A Manageable Constitution, Michael Gentithes

Akron Law Faculty Publications

Federal judges frequently avoid constitutional cases that raise difficult issues of public policy, using doctrines like standing and political questions as shields against judicial overreach. But a new and dangerous sword that allows judges to declare constitutional cases nonjusticiable is emerging in federal courts: a manageability prerequisite. The manageability prerequisite that emerged first in the Supreme Court’s gerrymandering jurisprudence and has since spread virulently throughout the circuit and district courts threatens to close the courthouse doors to a wide swath of litigants. Left unchecked, manageability could both significantly weaken the weakest branch and provide judges unbounded discretion to preserve any …

The Right To (Unbiased) Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

Whether a defense lawyer being biased against the accused on the basis of race and religion renders assistance of counsel ineffective is an unanswered question. One court will decide that issue when the Massachusetts Supreme Judicial Court renders a decision in Commonwealth of Massachusetts v. Dew. In this case, a court-appointed attorney, Richard Doyle, made over 20 bigoted and racist social media posts while representing his Black Muslim client, Anthony Dew. These public postings, made from 2014 through 2017, contained highly disparaging references to Muslims and Black people, including comments about Doyle’s own Black clients as “[a]ssorted thugs and bad …

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

Vanderbilt Law School Faculty Publications

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 …

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Michigan Law Review

A Review of Allow Me to Retort: A Black Guy’s Guide to the Constitution. By Elie Mystal.

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

The Case For The Current Free Exercise Regime, Nathan Chapman

Scholarly Works

How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …

Presuming Trustworthiness, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

Absolute Official Immunity In Constitutional Litigation, Michael L. Wells

Scholarly Works

Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence …

Fault Lines Of Immigration Federalism: United States V. Texas And The Reverse-Commandeering Of Immigration Enforcement Power, Kristine Quint

Lewis & Clark Law Review

Federal supremacy over immigration enforcement is a primary tenet of U.S. immigration law. Despite this, states are now routinely, and often successfully, blocking executive immigration policy in federal court. One such case is United States v. Texas, in which the states argue that the Biden administration’s enforcement priority guidelines inflict significant injury on the states while also violating statutory mandates and the Administrative Procedure Act. This Note analyzes United States v. Texas and concludes that the states’ arguments constitute an act of reverse-commandeering that usurps executive enforcement and policymaking power. The result is a state-held de facto veto, wielded through …

Easing The Burden Of Survivors Of Domestic Violence Through The "One Family, One Judge" Court Model: Why Integrated Domestic Violence ("Idv") Courts Should Be Instituted Throughout The United States, Elka B. Blonder

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the implementation of Integrated Domestic Violence (IDV) Courts nationwide, arguing that these courts provide a more efficient and supportive system for survivors of domestic violence by consolidating criminal, civil, and family cases under a single judge. This "one family, one judge" model aims to reduce the fragmentation and trauma survivors face in traditional court systems, offering a holistic approach that enhances survivor safety and offender accountability.

In Defense Of The Juggernaut: The Ethical And Constitutional Argument For Prosecutorial Discretion, David A. Lord

American University Journal of Gender, Social Policy & the Law

Within days of the Supreme Court’s decision overturning Roe v. Wade, progressive prosecutors throughout the country announced that if their jurisdictions enacted restrictions on abortion, they would not prosecute the individuals who had these procedures or the doctors who performed them. This is the latest example of situations, like drug crimes, illegal gun possession, and other offenses, where prosecutors have declined to enforce a state law as a matter of public policy. Critics of this broad use of prosecutorial discretion have argued that it violates the constitutional separation of powers.

This Article argues that prosecutorial discretion is well-founded in American …

Deathly Delegation: Analyzing Mississippi's Execution Statute Under The Nondelegation Doctrine, Megan Meissner

American University Law Review

The nondelegation doctrine is a separation of powers principle that limits the legislative branch from delegating its legislative authority to another branch of government. Although this doctrine is more widely known for its federal use, preventing Congress from relinquishing too much of its law-making authority to administrative agencies, most states have adopted similar nondelegation principles. Mississippi’s nondelegation doctrine requires that the legislature enact laws that prescribe the basic policy decision, provide adequate boundaries for agency guidance, and do not vest an agency with arbitrary discretion.

On July 1, 2022, Mississippi enacted a new execution statute, permitting the Department of Corrections …

The Ultimate Injustice: States' Failure To Take Steps To Prevent Wrongful Convictions And, When Wrongful Convictions Are Exposed, To Provide Adequate Assistance To Exonerees, Natalie Lahera

FIU Law Review

Among the many rights guaranteed by the Constitution are the rights to a presumption of innocence, equal protection, due process, a speedy trial, a trial by jury, and legal counsel, if indigent and charged with a serious crime. But those rights do not ensure that the justice system succeeds every time. The United States has exonerated over 3,000 individuals since 1989. The exonerees have collectedly lost over 26,700 years of their lives. Each exoneration has provided insight into the causes of wrongful convictions, the issues with current compensation laws, and even the changes that need to be implemented to avoid …

Transcript - Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen

Articles & Chapters

No abstract provided.

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 …

Urgensi Integrasi Pengaturan Mekanisme Keadilan Restoratif Dalam Sistem Peradilan Pidana Di Indonesia, Nabila Aulia Rahma, Pascal Toloh

Jurnal Hukum & Pembangunan

Conventional criminal law has always been synonymous with prison, where the settlement can result in the exclusion of the right to a sense of justice for victims because of their disproportionate position. This situation encourages the emergence of the concept of restorative justice, where based on this concept, criminal cases are resolved by involving perpetrators, communities and victims. However, at the regulatory level, the concept of restorative justice is set differently in various rules, which have not been synchronized, such as the internal rules of the Indonesian Police, the Attorney General's Office and the Supreme Court. Inconsistencies in these norms …

Evaluating The Pro Se Plight: A Comprehensive Review Of Access To Justice Initiatives In Ohio Landlord-Tenant Law, Caleigh M. Harris

University of Cincinnati Law Review

No abstract provided.

Countermajoritarian Criminal Law, Michael L. Smith

Pace Law Review

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Freeze-Frames And Blanket Bans: The Unconstitutionality Of Prisons’ Denial Of Gender Confirmation Surgery To Transgender Inmates, Aranda Stathers

Dickinson Law Review (2017-Present)

It is long established that the Eighth Amendment’s prohibition against imposing cruel and unusual punishments requires prisons to adequately address their inmates’ medical needs. Inmates identifying with the LGBTQ+ community are not exempt from this constitutional mandate. Trans inmates with gender dysphoria require specific treatment, including, but not limited to, gender confirmation surgery. While courts acknowledge that prisons owe a duty to provide some transition-related care, the extent of that duty remains contested. With no guidance from Congress or the Supreme Court, the constitutionality of prisons’ denial of gender confirmation surgery is in the hands of the circuit courts, which …

Symposium: The Future Of Reproductive Rights: Perilous Private Enforcement Strategies: From Posses And Citizen's Arrest To Texas Heartbeat Statutes, Jennifer A. Brobst

ConLawNOW

The utility of state private enforcement statutes restricting abortion in Texas and other states is worthy of close scrutiny. Placing private enforcement in historical context aids in understanding when it may be a sustainable strategy. First, the strategy of involving the populace in the enforcement of legislative mandates has a long history in the United States. Self-help is a necessity where law enforcement is not equipped to prevent and respond to every call for assistance. Citizen’s arrest, posse comitatus, and mandatory reporting of misconduct by citizens, including professional misconduct, all involve private action for the common good in state and …

Investigative Deception Across Social Contexts, 22-14 Knight First Amend. Inst. (Dec. 16, 2022), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This essay explores investigative deceptions, intentional lies used to gather information that is in the public interest, across different areas of law. In some contexts, such falsehoods are viewed as producing great social benefits. For example, civil rights laws embrace intentional lies by testers to smoke out discriminatory conduct. Under federal labor law, union 'salts' are allowed to hide their identity and acquire jobs with employers whose workers they wish to organize. In most cases, law enforcement officers may engage in elaborate subterfuges when operating 'stings' and interrogating witnesses. In these contexts, the law permits a person to lie in …

A Way Forward After Dobbs: Human Rights Advocacy And Self-Managed Abortion In The United States, Kelly Keglovits

Duke Journal of Constitutional Law & Public Policy Sidebar

Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening …

A Call To Abolish Determinate-Plus Sentencing In Washington, Rachel Stenberg

Washington Law Review

For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual has already served a standard sentence. A review of recent releasability determinations reveals sentences are often extended on arbitrary and inconsistent grounds—especially for individuals who face systemic challenges in prison due to their identity or condition. This Comment shows that the criteria to determine whether individuals are releasable is an incomplete picture of their actual experience in the carceral setting, using the distinct example of incarcerated individuals with mental illness. While …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …