Digital Commons Network^™

Public Law, Private Platforms, Andrew Keane Woods

Minnesota Law Review Vols. 106:2 onward (2021-present)

Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become our public spaces, but because they are privately owned and “merely” coordinate private ordering, they operate without the guardrails of many of our most important laws. For example, anti-discrimination law once covered nearly all short-term bookings at inns and hotels; today, nearly a quarter of the hospitality market is controlled by …

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …

Colorblind Nationalism And The Limits Of Citizenship, Ming Hsu Chen

Cardozo Law Review

Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …

Bond Conditions As Fourth Amendment Seizures, Rebecca Laden

Cardozo Law Review

No abstract provided.

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself Critics' primary target is the "trial penalty." But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of "progressive prosecutors" is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …

Qualified Knowledge: The Case For Considering Actual Knowledge In Qualified Immunity Jurisprudence As It Relates To The First Amendment Right To Record, Carly Laforge

William & Mary Law Review

This Note argues that this particular finding of the Frasier court is both pragmatically and philosophically problematic. By design, the qualified immunity doctrine seeks to shield police officers from civil rights lawsuits. However, prioritizing assumed knowledge over actual knowledge in determining what qualifies as a clearly established constitutional right harms the citizens that law enforcement officers have sworn to protect and serve. While traditional delineations of clearly established rights have involved appeals to precedent, public policy concerns are also important considerations in the qualified immunity analysis. In this way, Frasier is especially concerning in that it prioritizes the total defense …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

Regulating Uncertain States: A Risk-Based Policy Agenda For Quantum Technologies, Tina Dekker, Florian Martin-Bariteau

Canadian Journal of Law and Technology

Many countries are taking a national approach to developing quantum strategies with a strong focus on innovation. However, societal, ethical, legal, and policy considerations should not be an afterthought that is pushed aside by the drive for innovation. A responsible, global approach to quantum technologies that considers the legal, ethical, and societal dimensions of quantum technologies is necessary to avoid exacerbating existing global inequalities. Quantum technologies are expected to disrupt other transformative technologies whose legal landscape is still under development (e.g., artificial intelligence [‘‘AI”], blockchain, etc.). The shortcomings of global policies regarding AI and the digital context teach lessons that …

Allowed To Stay: An Exploration Of Dhs New Guidelines To Dismiss Certain Immigration Cases, Jazmin E. De La Cruz Sanchez

Dissertations, Theses, and Capstone Projects

A new Department of Homeland Security (DHS) guideline issued with the intent of reducing case backlogs has led to the dismissal of many immigrants’ legal proceedings. Having their case dismissed has allowed those immigrants to stay within the United States essentially with no legal status. I argue in this paper that these changes have left many in a state that’s been termed liminal legality. Building on previous research that employs this concept, I specifically argue that being in this position affects one’s employment, income, prospects for upward mobility, and future legal standing. Although this new guideline was created to …

Policing The Unhoused, Ernesto Longa

New Mexico Law Review

[A]n Albuquerque police officer ordered Joleen Nez, a 37- year-old, unhoused, American Indian woman, “to pick up her litter [from the street] and of the consequences if she did not.” Joleen refused, stating, “It’s not my trash.” The consequences were that Joleen was summoned to appear in court for littering, booked into the Bernalillo County Metropolitan Detention Center (“MDC”) when she failed to appear and declared an in-custody death the next day.These stories and others like them prompted a series of questions. Why are non-violent petty criminal offenders being murdered by police and dying in county jails? What does the …

Deepfakes On Trial: A Call To Expand The Trial Judge’S Gatekeeping Role To Protect Legal Proceedings From Technological Fakery, Rebecca A. Delfino

UC Law Journal

Deepfakes—audiovisual recordings created using artificial intelligence (AI) technology to believably map one person’s movements and words onto another—are ubiquitous. They have permeated societal and civic spaces from entertainment, news, and social media to politics. And now deepfakes are invading the courts, threatening our justice system’s truth-seeking function. Ways deepfakes could infect a court proceeding run the gamut and include parties fabricating evidence to win a civil action, government actors wrongfully securing criminal convictions, and lawyers purposely exploiting a lay jury’s suspicions about evidence. As deepfake technology improves and it becomes harder to tell what is real, juries may start questioning …

Standing For The Most Vulnerable, Michael L. Radelet

Ohio Northern University Law Review

No abstract provided.

Boumediene V. Bush: Does It Really Curtail Executivemanipulation?, Nelson Berardinelli

Ohio Northern University Law Review

No abstract provided.

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

Articles

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

After Fifty Years Of The War On Drugs, The Nation Looks West: Why Oregon Required The Drug Addiction Treatment And Recovery Act And What We Can Learn From It, Cailin Harrington

Seton Hall Law Review

No abstract provided.

Idaho’S Rapid Growth Brings Challenges And Opportunities, Robert Mcquade, Justin Ruen

Idaho Law Review

No abstract provided.

Planning For Rapid Growth In Small And Rural Communities In The Intermountain West: Identifying Chalenges And Solutions In The Land Use Context, Thomas F. Dansie, Daniel C. Dansie

Idaho Law Review

No abstract provided.

What Makes It A Just Transition? A Case Study Of Renewable Rikers, Rebecca Bratspies

Pace Environmental Law Review

This essay offers New York City’s Renewable Rikers as an example of what a just transition might look like in practice. Specifically, this essay describes how Renewable Rikers connects the need for non-polluting energy infrastructure with a broader conversation about decarceration and racial justice to build an inclusive pathway for prosperity and environmental health for all New Yorkers. The first part of this essay sets the stage with a brief overview of the climate crisis. Part two sketches the contours of what constitutes a just transition as that term is used in the Green New Deal Resolution. Part three situates …

The Right To Data Encryption, Steven W. Schlesinger, Dr. Shlomit Yanisky-Ravid

San Diego Law Review

Technology drives our society, and we are data-dependent as a people. Though the legal system in the United States lacks neither basic protections nor methods to address data protection-related issues, this Article proposes an essential and more robust alternative.

This Article introduces the prevalence and reliance on data and stored information, noting the growing need for a better balance between enabling users’ ability to access encryption tools and the threats and concerns from a governmental perspective for malicious use of encryption tools for criminal and terror purposes.

The Article first recounts a brief history of encryption, focusing on its growing …

Prevention Or Creation Of Terrorism? The Sri Lankan Prevention Of Terrorism Act, Abigail Castle

Immigration and Human Rights Law Review

Abstract

The tyrannical Sri Lankan Prevention of Terrorism Act (“PTA”) has been in effect for over forty years. Dating back to the decades-long civil war, the PTA has terrorized Sri Lankan citizens. The PTA authorizes the Sri Lankan government to arbitrarily detain citizens without warrants for up to eighteen months; use torture to extract confessions; and target protesters, minority groups, and political opponents. The PTA creates a breeding ground for numerous human rights violations with no accountability for the officials who commit human rights abuses. The use of the Act has intensified since 2019 with the Easter Sunday Bombings and …

Firearm Deaths Of American Minors: Perceptions Vs. Facts, Andrew L. Goddard

Richmond Public Interest Law Review

Firearm violence is now the leading cause of death for Americans under the age of eighteen. This article demonstrates that widely held misconceptions about the true nature and extent of this violence have led to legislative proposals narrowly tailored toward firearm violence in schools, despite facts and data showing school firearm violence to be a small fraction of the problem. These misconceptions are caused by both the narrow focus of national media attention and the deceptive propaganda of the gun industry. The article concludes by examining several bills proposed during the Virginia General Assembly session of 2022 to show how …

From Ban To Approval: What Virginia's Facial Recognition Technology Law Gets Wrong, Alison Powers, Korica Simon, Jameson Spivack

Richmond Public Interest Law Review

Face recognition technology (FRT), in the context of law enforcement, is a complex investigative technique that includes a delicate interplay between machine and human. Compared to other biometric and investigative tools, it poses unique risks to privacy, civil rights, and civil liberties. At the same time, its use is generally unregulated and opaque. Recently, state lawmakers have introduced legislation to regulate face recognition technology, but this legislation often fails to account for the complexities of the technology, or to address the unique risks it poses. Using Virginia’s recently passed face recognition law and the legislative history behind it as an …

Ending Race-Based Pretextual Stops: Strategies For Eliminating America's Most Egregious Police Practice, Bradley R. Haywood

Richmond Public Interest Law Review

Pretextual policing is the practice of stopping motorists or pedestrians for minor offenses like traffic infractions in hopes of learning that the person stopped has committed a more serious crime. Pretextual policing is also the main reason Black Americans are so much more likely than white Americans to be subjected to encounters with law enforcement. Shockingly, even in its most explicitly racist form, pretextual policing does not violate the Fourth Amendment’s proscription against unreasonable searches and seizures. In fact, police can pull a driver over merely because he is Black without violating the Fourth Amendment, so long as the officer …

Virginia Tax Re-Structuring: 100 Years Ago, 50 Years Ago, And Now, Vivian E. Watts

Richmond Public Interest Law Review

Virginia’s state and local financing structure is under pressure. Aged schools have fallen into disrepair in localities without a tax base to back capital improvement bonds. Virginia’s commitment in the wake of Brown v. Board of Education to fund equal public education opportunity for all has eroded. As the dominate source of local government funding, the real estate tax adds to housing costs, consuming the largest share of household budgets. This article discusses current and historic Virginia debates on tax equity, economic sustainability, program ramifications, and non-resident cost-sharing. It raises questions about the widening income gap and changes in business …

The Excessive Fines Clause: Assessing Proportionality Of Fines Through Civil Asset Forfeiture By Multi-Factor Tests In The Wake Of Timbs V. Indiana, Lauren V. Parrottino

Liberty University Law Review

This article analyzes the approaches to assessing the proportionality of fines imposed by civil asset forfeiture. In many cases, fines imposed by civil asset forfeiture consist of property. Without clear Supreme Court guidance on the matter of evaluating just what makes a fine “excessive,” I turned to the proportionality jurisprudence from the Eighth Amendment’s Cruel and Unusual Punishments Clause. While many circuits have proposed their own tests for excessive fines imposed through forfeiture, I propose an objective multi-factor test that will measure a fine’s proportionality to avoid excessiveness.

God, Guns, And Hair Salons: Public Perceptions Of Rights And Liberties During The Covid-19 Pandemic, Jessica R. Graham, Kyle J. Morgan

West Virginia Law Review

In response to the COVID-19 pandemic, elected officials across the United States took efforts to slow the spread of the virus. Some of these efforts raised constitutional questions about the ability of the government to curtail rights during a crisis. This project makes use of an original dataset—letters to the editor submitted to 33 of the nation’s largest newspapers during the early months of the pandemic—to analyze public attitudes about these restrictions. Like much of the previous work regarding attitudes towards rights and liberties during a crisis, we find that these concerns are not front of mind to the public. …

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Law Enforcement Leadership And Organizational Culture In A Post-2020 Society, Carlos A. Perkins

Theses, Dissertations and Capstones

The purpose of this qualitative pilot study was to investigate the perceptions of selected law enforcement leaders regarding the impending transition in law enforcement agencies in a post-2020 society. Specific elements of this transition investigated included recruitment, training, socialization, leadership roles/qualifications, change strategies/process, stakeholder involvement, and measures of success. Purposeful, convenience, and snowball sampling were used to select study participants. Study participants (N=21) were active sworn law enforcement leaders in a law enforcement agency in North Carolina. Participants possessed a broad range of law enforcement years of experience and/or leadership/supervisory experience at a minimum rank of lieutenant. Semi-structured interviews were …

New Jim Crow Of The North: Cfos, Nuisance, And Neosegregation, Jacqueline Nafstad

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.