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A Scapegoat Theory Of Bivens, Katherine M. Crocker

Notre Dame Law Review

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

The Right Against Self-Incrimination Under Indian Constitution & The Admissibility Of Custodial Statements Under The Indian Evidence Act, 1872, Khagesh Gautam

Maurer Theses and Dissertations

This work argues that the constitutional validity of section 27 of the Indian Evidence Act, 1872 is highly suspect on the ground that it violates the right against self-incrimination protected by article 20(3) of the Indian Constitution. Section 27 codifies the doctrine of confirmation by subsequent recovery, an old British rule of admission according to which self-incriminatory custodial statements and/or confessions obtained by the police or the investigation agency are admissible into evidence on the ground that contents of such statement have been confirmed by recovery of incriminating physical evidence. Chapter I locates the Indian criminal justice system within the …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Scholarship

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Critical Reflections On Fraser: What Equality Are We Seeking?, Sonia Lawrence

Articles & Book Chapters

In this brief comment, I contextualise and complicate the conventional reading of Fraser v Canada as a victory for equality seeking groups.¹ Instead, or at least alongside that reading, I want to suggest some other stories about the trajectory of equality in Canada since the Charter² era began, and about what future doctrinal developments Fraser might lead us to predict.

1 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser]. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Manning, Powell, And The Habitual Misunderstanding Of Addiction, Matt Dean

St. John's Law Review

(Excerpt)

Bryan Manning, a homeless resident of Roanoke, Virginia, has been arrested and prosecuted more than thirty times for drinking or possessing alcohol. Although alcohol is generally legal in Virginia, Mr. Manning was forbidden for many years to “possess” it, “consume” it, or “purchase” it. On at least one occasion, police arrested him merely for “smelling like alcohol.” On another occasion, he was arrested because he happened to be shopping in a Walmart where alcoholic beverages were sold. For decades, Virginia law permitted a state circuit court to issue a civil order declaring an individual to be “an habitual drunkard” …

Bye, Bye, Bilinguals: The Removal Of English- Spanish Bilinguals From The Criminal Jury And Latino Discrimination, Ashley Rich

Chicago-Kent Law Review

No abstract provided.

Introduction To Reviving The American Jury, Nancy S. Marder

Chicago-Kent Law Review

No abstract provided.

Unmuted: Solutions To Safeguard Constitutional Rights In Virtual Courtrooms And How Technology Can Expand Access To Quality Counsel And Transparency In The Criminal Justice System, Matthew Bender

Villanova Law Review (1956 - )

No abstract provided.

Re-Imprisonment Without A Jury Trial: Supervised Release And The Problem Of Second-Class Status, Stephen A. Simon

Cleveland State Law Review

The Supreme Court’s 2019 decision in United States v. Haymond shone a light on a practice that has not yet received attention commensurate with its significance: the re-imprisonment of individuals on supervised release without a jury trial. At first blush, the decision is most notable for setting bounds on the government’s ability to re-imprison individuals on supervised release without observing the constitutional rights normally available to defendants in criminal prosecutions. However, examination of the opinions reveals that the decision’s immediate doctrinal impact was quite limited. Moreover, although the three opinions issued in the case reflected disagreements among the Justices, all …

Untested And Neglected: Clarifying The Comparator Requirement In Equal Protection Claims Based On Untested Rape Kits, Emily Jones

Northwestern University Law Review

Rape kits are important tools used to store the evidence that is collected from a victim’s body and clothing following a sexual assault. Although the DNA evidence stored in rape kits is crucial to rape investigations, police departments throughout the country have routinely failed to test rape kits. This remains true despite the national funding allocated specifically for rape kit testing. This widespread neglect hinders justice and renders community members unprotected from sexual violence. The national rape kit backlog has sparked legal challenges; six lawsuits have been filed against police departments for systematically refusing to test rape kits, alleging equal …

Death-By-Incarceration In Illinois, Joseph Dole

Northwestern Journal of Law & Social Policy

No abstract provided.

Valuation Blunders In The Law Of Eminent Domain, Richard A. Epstein

Notre Dame Law Review

In dealing with the valuation problem, I will bracket these estimation issues in order to look to different and disturbing types of difficulties in the valuation enterprise. The law of eminent domain starts with the implicit assumption that the government is in general a good actor whose motives and laudable and whose behavior does not need excessive judicial oversight. Hence the general norm of judicial deference often applies to valuation decisions. In the cases that I shall review, as well as others, a general pattern emerges, whereby all doubtful valuation questions that arise dealing with key problems are at best …

Illegal Discharge: Exploring The History Of The Criminal Enforcement Of The U.S. Clean Water Act, Dr. Joshua Ozymy, Dr. Melisssa L. Jarrell

Fordham Environmental Law Review

The criminal prosecution of defendants that violate federal clean water laws has been ongoing for roughly four decades. Yet, we continue to have a poor understanding of how federal prosecutors use the U.S. Clean Water Act (“CWA”) to charge and prosecute criminals and the outcomes of those prosecutions. We use content analysis to analyze 2,588 federal criminal prosecution case summaries, 1983-2019, to gain a better historical understanding of how the CWA has been used as a prosecutorial tool, to bring out the major themes in the prosecutions, and quantify sentencing outcomes. Findings from the 828 CWA prosecutions undertaken during this …

Plea Bargains: Justice For The Wealthy And Fear For The Innocent, Emily Stauffer

Brigham Young University Prelaw Review

The Supreme Court has consistently recognized the hardships of the poor in the criminal justice system and has set a precedent that if a person cannot afford access to any level of the criminal justice system, the state must remove that financial barrier. Prosecutorial tactics in the plea-bargaining process coerce the poor into waiving their right to trial. The unequal access to trial between the poor and non-poor violates the Fourteenth Amendment, which requires that states remove any barrier that restricts the poor from the criminal justice system. The Court has left the states to decide which solutions will work …

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

Scholarly Works

Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers …

“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo

St. Mary's Law Journal

Abstract forthcoming.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Racial Equality And Inequality In America And Lessons From Other Countries, William Y. Chin

Cardozo Journal of Equal Rights & Social Justice

America, a mighty global hegemon supreme in military matters, regards itself as second to none, and where it leads, it expects other countries to follow. But on matters of race, America could follow the examples of countries that have taken the lead in experimenting with racial equality efforts and initiatives. From Brazil's "redemption through reading" prison program to the High Court of Australia's return of land to indigenous inhabitants, much could be learned from the lessons of other countries. That there is still much to learn about racial equality is evident from the police killing of George Floyd, a Black …

Reformulasi Delik Makar Dalam Rancangan Kitab Undang-Undang Hukum Pidana Nasional Tahun 2019 (Sebuah Telaah Leksikal Terhadap Terminologi Aanslag), Yaris Adhial Fajrin

Jurnal Hukum & Pembangunan

The use of the term Makar as a translation of the word Aanslag in Indonesias CRIMINAL code currently triggers a variety of polemic because it has a lot of meaning, resulting in an ambiguity that causes no legal certainty to be guaranteed. Indonesias CRIMINAL code is currently in its case that it does not provide define and the limitations of Macar deeds so that the multitasking is still prone to occur. Addressing such a thing, it is necessary to reformulation the draft proceeding in the Penal Code in order to ensure the future legal certainty. The limitation of the performance …

Pencabutan Kewarganegaraan Tentara Isis Yang Akan Kembali Ke Indonesia, Reza Adhitya Akbar

"Dharmasisya” Jurnal Program Magister Hukum FHUI

ISIS's troops are not only citizens of Iraq or Syria, but come from various citizens and also Islam recruited by ISIS, not excluding Indonesian citizens. Based on the above description, two formulas are defined, namely: (1) What is the legal status of a citizen who is a soldier of ISIS; And (2) Is the Indonesian government obliged to protect its citizens who consciously become ISIS troops. The type of research used is normative legal research. The result of this research is the status of Indonesian Citizen who becomes ISIS soldier can not be revoked his citizenship because it does not …

Peran Perbankan Dalam Pencegahan Dan Pemberantasan Tindak Pidana Narkotika, Muhammad Zulamanah Isnaem

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Narcotics crimes have become a tremendous problem for now. Narcotics crime continues to grow in every country, including Indonesia. With the globalization of banking, through the banking system, funds from the proceeds of narcotics crime, moving or moving beyond the state jurisdiction using bank secrecy issued by the banks. The role of Banks in the Prevention and Eradication of Narcotics Crimes must carry out the principle of customer due diligence. This is very useful to find out the latest position for users of banking services. There fore the role of the implementation of CDD is very broad, both in terms …

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Rhetoric And Nostalgia In The Criminal Justice Reform Movement, Michael Gentithes

ConLawNOW

Today’s movement for criminal justice reform and its attendant "defund the police" slogan contain nuanced calls to redirect public funds in ways that will both control crime and support downtrodden neighborhoods. But the language in those calls can easily be misinterpreted. Such poor messaging misleads both the movement’s members and the public in two important ways. First, it repeats many of the mistakes made by protest anthems of the past. For too many Americans enduring today’s all-too-real dystopia, calls to defund sound like calls to anarchy, not arguments for peaceable, sensible reforms. Second, defunding rhetoric contains an element of historical …

Who Protects Whom: Federal Law As A Floor, Not A Ceiling, To Protect Students From Inappropriate Use Of Force By School Resource Officers, Elsa Haag

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past forty years, students in the U.S. have experienced increasingly strict school discipline policies and increased police presence in schools. Sent into schools with the aim of improving security in the wake of mass shootings, school resource officers (SROs) are sworn law enforcement regularly assigned to schools. But there is a paucity of evidence that SROs are effective in preventing mass shootings or provide other significant benefits. Instead, research shows that the presence of SROs results in students achieving less and experiencing more physical and emotional harm, with long-term implications and costs for individuals and communities. As trained …

Are Federal Exonerees Paid?: Lessons For The Drafting And Interpretation Of Wrongful Conviction Compensation Statutes, Jeffrey S. Gutman

Cleveland State Law Review

In this third of a series of articles on wrongful conviction compensation statutes, Professor Jeffrey Gutman tackles the first statute attempted to be passed in the United States – the federal wrongful conviction compensation statute. Championed in concept by Edwin Borchard, it was in fact poorly drafted, and recommendations by Attorney General Homer Cummings to improve it were only partly successful. This Article retraces the long legislative history of the statute which is dotted with sloppy language and reasoning, unexplained amendments and an unfortunate focus on who was not to benefit from it, rather than who was. This tangled legislative …

Influence Of The Federal Government On The Diffusion Of Victims' Rights State Constitutional Amendments, Vicki Rose Jeffries-Bilton

Dissertations and Theses

This dissertation examines the factors associated with the diffusion of state constitutional victims' rights amendments across the United States in the twenty-year period of 1982 to 2001 to understand the impact of the federal government on state constitutional change. Because each branch of the federal government took prominent actions in the area of victims' rights on the national policy stage during this era, it is important to know whether these actions influenced policy change at the state level. This dissertation examines whether one form of prominent federal action, the president's use of rhetoric to acknowledge support for victims' rights, influenced …

Handle With Care: Constitutional Standards For Information Sharing In Medical-Correctional Transition, Andrew R. Hayes

Duke Journal of Constitutional Law & Public Policy Sidebar

Correctional institutions have an Eighth Amendment obligation to provide healthcare to inmates. In practice though, jails and prisons struggle to provide adequate care to millions of incarcerated individuals, roughly half of whom have at least one chronic health condition. As a result, harsh conditions of confinement routinely threaten the health of inmates who require specific medical accommodations. Recognizing this risk, the courts hold corrections institutions liable for harm when government officials are “deliberately indifferent” to prisoner medical needs.

Beginning with the HITECH Act of 2009, mainstream medicine embraced tools that eliminate gaps in medical communication. Today, most Americans rely on …

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Catholic University Law Review

Decades after the Supreme Court’s decision in Miranda v. Arizona, questions abound as to what constitutes interrogation when a suspect is in custody. What appeared a concise, uniform rule has, in practice, left the Fifth Amendment waters muddied. This article addresses a potential disconnect between law enforcement and the courts by analyzing examples of issues arising from Miranda’s application in an array of case law. Ultimately, it attempts to clarify an ambiguity by offering a standard for what conduct classifies as an interrogation.

Introduction – 2019 Constitutional Cases At The Supreme Court: Up Close And In Person, Sonia Lawrence

Articles & Book Chapters

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good …

Military Service And Offending Behaviors Of Emerging Adults: A Conceptual Review, Christopher Salvatore, Travis A. Taniguchi

Department of Counseling Scholarship and Creative Works

Focusing on the United States, this paper examines the impact of military service for the cohort of individuals that have experienced the social factors that characterize emerging adulthood as a unique stage in the life course. We argue that military service, as a turning point, may act differently in contemporary times compared to findings from past research. This difference is driven by changes in military service, the draft versus volunteer military service, and the prevalence of emerging adulthood. As a background, we describe emerging adulthood, examine how emerging adulthood relates to crime and deviance, explore the impact of military life …