Digital Commons Network^™

The Carceral Home, Kate Weisburd

GW Law Faculty Publications & Other Works

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory. In practice, a range of modern institutions that target private life—from public housing to child welfare—have turned the home into a routinely surveilled space. Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a “carceral home.” Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information. While prisons have always been treated in …

Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.

MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …

Prosecution And Polarization, Steven Arrigg Koh

Faculty Scholarship

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.

This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time …

How Do Prosecutors "Send A Message"?, Steven Arrigg Koh

Faculty Scholarship

The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.

Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment …

Zoned In: How Residence Restrictions Lead To The Indefinite And Unconstitutional Detention Of New Yorkers Convicted Of Sex Crimes, Rebecca Tunis

Cardozo Law Review de•novo

Despite the New York Court of Appeals majority holding in People ex rel. Johnson, New York’s policy of detaining individuals beyond their maximum sentence because they are unable to procure SARA-compliant housing is plainly unconstitutional. The policy violates sex offenders’ fundamental right to be released from prison after serving their sentence. Further, the policy fails to meet even the most relaxed form of judicial review because the state has not shown that it benefits public safety. Indeed, there is virtually no evidence proving that this policy serves to protect the public at all, and a growing body of research shows …

When “Riot” Is In The Eye Of The Beholder: The Critical Need For Constitutional Clarity In Riot Laws, Nancy C. Marcus

Faculty Scholarship

In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who …

Intellectual Property Piracy In The Time Of The Metaverse, James M. Cooper

Faculty Scholarship

The article explores ways in which companies, innovators, artists, and cultural workers can best protect their IP rights in the metaverse. Focusing on IP piracy and counterfeiting, long-time problems in both the real world and online, the article addresses the threats that these illicit activities pose to legitimate commerce, government tax revenues, public safety, and national security. It examines the implications that the metaverse poses for businesses going forward with respect to brand management and revenue source protection and details the manners in which IP rights can be best protected in the metaverse. It concludes with a review of the …

Conditions Of Confinement In Nova Scotia Jails Designated For Men: East Coast Prison Justice Society Visiting Committee Annual Report 2021-2022, Sheila Wildeman, Harry Critchley, Hanna Garson, Laura Beach, Margaret-Anne Mchugh

Reports & Public Policy Documents

This is the second Annual Report of the East Coast Prison Justice Society (“ECPJS”) Visiting Committee (“VC”).

The purpose of the ECPJS VC is to bring increased accountability and transparency to the Nova Scotia correctional system in light of human rights standards, domestic and international. While the Elizabeth Fry Society of Mainland Nova Scotia provides human rights monitoring of conditions of incarceration experienced by women and non-binary people in federal prisons and provincial jails in the Atlantic region, and the federal Office of Correctional Investigator provides further oversight of conditions in federal prisons, there is no comparable independent oversight of …

Connecting The Dots To Reveal A New Picture: A Report On Indian Act By-Law Enforcement Issues Faced By First Nations In Nova Scotia And Beyond, Naiomi Metallic, Roy Stewart, Ashley Hamp-Gonsalves

Reports & Public Policy Documents

This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, …

The California Way: An Analysis Of California’S Immigrant-Friendly Changes To Its Criminal Laws, Evangeline G. Abriel

Faculty Publications

Immigration falls exclusively within the federal government’s purview, and states are generally prohibited from legislating in the area of immigration. At the same time, however, a large number of individuals are subject to deportation, denial of admission, and denial of immigration benefits based upon convictions of state crimes, over which states generally have exclusive authority. At a time when both the federal government and some states seem determined to expand the immigration consequences of even relatively minor criminal con- duct, is there anything states can do to protect their noncitizen re- sidents? Surprisingly, yes, quite a bit. California, for example, …

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 …

A New Test For The New Crime Exception, Colin Miller

Faculty Publications

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …

The New Normal: Regulatory Dysfunction As Policymaking, Ming Hsu Chen, Daimeon Shanks

Maryland Law Review

No abstract provided.

Hard Truths: Libel By Implication Doctrine And The Need For A Uniform Standard, Carly Ryan

University of Michigan Journal of Law Reform

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they …

Civil Rights Liability For Bad Hiring, Nancy Leong

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

Suppose that a municipality hires a police officer, teacher, corrections officer, or other official with an extensive record of past misconduct—someone the municipality should have known better than to hire. When such an employee causes a violation of constitutional rights, the injured party often brings a civil rights suit under 42 U.S.C. § 1983, arguing that the municipality failed to screen the wrongdoer prior to hiring. Yet little is known about how such lawsuits play out on the ground.

In the first empirical study of municipal liability for bad hiring, this Article demonstrates that municipalities enjoy de facto immunity for …

Exhuming Nondelegation . . . Intelligibly, Zachary R.S. Zajdel

Fordham Journal of Corporate & Financial Law

Whether by avalanche or a thousand cuts, the intelligible principle test may be awaiting its untimely demise at the behest of a reinvigorated nondelegation movement. Perhaps looking to speed up the decomposition, the Fifth Circuit in Jarkesy v. Securities and Exchange Commission struck down the SEC’s discretion to pursue enforcement actions with its own Administrative Law Judges or in federal court as unconstitutionally delegated legislative power. This Note posits that Jarkesy was rightly decided but rife with uncompelling reasoning. Establishing this requires a detour into the meaning of the Necessary and Proper Clause, the significance of the separation of powers, …

(Re)Building The Master's House: Dismantling America's Colonial Politics Of Extraction And Exclusion, Marissa Jackson Sow

Michigan Law Review Online

On February 10, 2021, and in the days thereafter, liberal American commentators showered Congresswoman Stacey Plaskett with superlatives and praise due to her masterful takedown of former President Donald Trump during his impeachment trial for incitement of the January 6, 2021 Capitol Riot. Referring to a picture of Plaskett wearing a knee-length blue dress with draped sleeves, the political strategist (and daughter of House Majority Leader Nancy Pelosi) Christine Pelosi took to Twitter to note that “[n]ot all superheroes wear capes. This one does!”

No-Knock Warrants: Protective Or Predatory For North Carolinians?, Micah Mooring

Campbell Law Review

Much ink has been spilled on arguments for restraining law enforcement’s use of no-knock warrants. In 2020, the issue was thrust into the national spotlight with the tragic death of Breonna Taylor at the hands of the Louisville Metro Police Department. While national attention focused on the federal response, Oregon, Florida, Virginia, and other states sprang into action by critically reexamining the justifications offered for the use of no-knock warrants and, in some cases, finding these justifications wanting. The Comment suggests that the justification of safety that no-knock warrants share with their predecessor, the venerable knock-and-announce rule, is not borne …

The First Offense Is Just A Ticket? How Culture And Lobbying Shaped Wisconsin's Drunk Driving Law, And What To Do About It, Noah Wolfenstein

Marquette Law Review

Wisconsin is known for, and proud of, its heavy drinking culture. The Badger State also acts as a safe haven for drunk drivers, of which there are many. Most notably, Wisconsin is the only member of the fifty states which does not criminally punish first-time drunk driving offenders. If the Wisconsin legislature has any interest in the public safety of its constituents, then new drunk driving prevention measures must be implemented.

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 Right To Migrate, Matthew J. Lindsay

All Faculty Scholarship

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the long-standing premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate.

During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding …

Court Review: Journal Of The American Judges Association, Vol. 59, No. 4, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Articles

The Role of the Judge in Establishing a VTC, Mishkat Al Moumin, Judge Gayle Williams-Byers, and Amber Menchio

Prospective Jurors’ Attitudes Toward Voir Dire, Wendy P. Heath and Bruce D. Grannemann

Constitutional Losses and (Some) Statutory Wins for Criminal Defendants: Select Criminal Law and Procedure Cases from the Supreme Court’s 2022-23 Term, Eve Brensike Primus and Mark Rucci

Departments

Editor’s Note, David Prince

President’s Column: The American Judges Association--Making Better Judges Since 1959, and Continuing to Lead the Way! Catherine Carlson

Thoughts from Canada: Publication Bans--The Supreme Court of Canada Considers Their Impact Upon the Conflict between the Open …

One Choice Is No Choice At All: Indonesia Is Violating The International Covenant On Civil And Political Rights By Requiring Political Parties To Adhere To Its National Ideology Of Pancasila, Daniel Brezina

American University International Law Review

This Comment argues that Indonesia is violating Articles 1, 18, 22, 25, and 27 of the International Covenant on Civil and Political Rights by requiring that all political parties adhere to its national ideology of Pancasila. This Comment will introduce the ideology of Pancasila and explain how Indonesia came to require political parties to adhere to the ideology. This Comment will also explain what rights the ICCPR guarantees and introduce the UN Human Rights Committee, which is tasked with monitoring signatories’ compliance with the ICCPR. This Comment will explain how Indonesia’s requirement violates several Articles of the ICCPR, including how …

Outer Space Resource Extraction: The Regulation Of Commercial Space Actors, Katie Parnow

American University Law Review

Outer space resource extraction has become more feasible for the near future, with some companies already setting launch dates. The U.S. Commercial Space Launch Competitiveness Act of 2015 legalized resource extraction, but it did not resolve many challenges that resource extraction poses, such as safety risks while extracting; what, where, and how one can extract resources; and technology one can use. A patchwork of administrative agencies currently governs the regulatory field of outer space, and because it is such a novel procedure, it is unclear which administrative agency should assume regulatory authority over on-orbit resource extraction activities. Under a traditional …

A Reckoning For Religious Freedom: India's Bjp And The International Implications Of Anti-Muslim Leadership, Heather Holman

American University International Law Review

Currently, the Bharatiya Janata Party (BJP) holds the majority in the Indian Parliament, where it exercises its authority by passing legislation that comports with Hindutva. Hindutva is a political ideology that champions policies intended to make India a Hindu state. Toward this end, BJP leaders use harmful rhetoric and pass legislation that harms Muslim citizens of India. However, India is a party to the International Covenant on Civil and Political Rights (ICCPR), which protects the freedom to manifest one’s religion and prevents the advocacy of religious hatred that constitutes incitement to hostility, discrimination, or violence.

This Comment argues that India …

Haaland V. Brackeen: The Decision That Threatened The Indian Child Welfare Act’S Protections Of Native Families In Illinois, Kennedy Ray Fite

Loyola University Chicago Law Journal

The Indian Child Welfare Act has become a controversial piece of legislation since the Supreme Court heard oral argument on the case of Haaland v. Brackeen in November 2022 and released its decision in June 2023. The statute was originally enacted in 1978 to remedy the United States’ tragic history of family separation in tribal communities, including removal of native children who were subsequently placed into federal boarding schools or non-native homes by a child-welfare system grounded in white-American assumptions. Congress recognized the vital nature of Native American culture for native children and the importance of native children to tribal …

Virtual Justice: Measuring Perceptions Of Fairness In Civil And Criminal Courts, Kaitlyn Filip, Kat Albrecht

Loyola University Chicago Law Journal

COVID-19 had an instant effect on the court system in the United States as court business ground to a halt and then transitioned to being conducted online. Now the courts have a substantial decision to make concerning how much court business should continue being conducted online and what court business should return entirely to in-person proceedings. Because of the relative recency of digital court modalities, the body of existent research is small. Moreover, the existing universe of law research takes pre-pandemic in-person proceedings as a necessary baseline instead of considering virtual courts as a potential mechanism for improving enduring problems …

You'll Grow Into It: How Federal And State Courts Have Erred In Excluding Persons Under Twenty-One From 'The People' Protected By The Second Amendment, Ryder Gaenz

FIU Law Review

After more than two centuries of jurisprudential stillness, the United States Supreme Court undertook the task of discerning the Second Amendment’s meaning in District of Columbia v. Heller, holding that the Second Amendment protects the individual right to self-defense. Since Heller, the lower courts have grappled with determining the scope of the Second Amendment. One question of scope—the subject of this piece—is at what age does a person come within the scope of the Second Amendment’s protections? Some federal and state courts have suggested, and in some cases held, that persons under twenty-one do not enjoy Second Amendment rights. However, …

The Future Is Electric: Nuclear Energy’S Role In Combating Climate Change And The Regulatory Measures To Enable Its Advancement, Autumn Clark

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Trap Chronicles Vol. 2: A Call To Reconsider “Risk” In Federal Supervised Release, Lahny Silva

Maryland Law Review

No abstract provided.