Digital Commons Network^™

Locking Up Potential: Why Children Need Access To Special Education Services In Solitary, Lauren Edwards

Touro Law Review

Correctional facilities across the country are consistently failing to provide adequate special education to disabled children who are placed in solitary confinement due to inadequate funding, untrained staff, and lack of consensus on how to implement a program. This Note compares the special education services that disabled children are entitled to under the Free Appropriate Public Education (“FAPE”) statute with the education they receive during incarceration. This Note also discusses suggestions for implementing meaningful special education when a child is isolated. When disabled children are placed in solitary confinement and deprived of education tailored to their specific needs and abilities, …

Opioid Settlements And Profitable Public Nuisances, Clayton J. Masterman

Touro Law Review

The global settlements between state and local governments and opioid manufacturers, distributors, and retailers require opioid defendants to transform their businesses and pay more than $40 billion to abate the ongoing opioid epidemic. The $40 billion in abatement funds is a substantial pool of money that is likely to help states combat opioid use and abuse. Large as the payments are, however, they are significantly smaller than the profits that the opioid defendants made over the course of the epidemic or the total harm that they caused. This Article argues that the global opioid settlements incentivize future defendants to create …

Table Of Contents

Touro Law Review

No abstract provided.

Younger And Older Abstention, Fred O. Smith Jr.

Michigan Law Review

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child …

After Courts: Democratizing Statutory Law, Ryan D. Doerfler, Samuel Moyn

Michigan Law Review

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, …

Three Essays On The Economics Of Crime And Education, Joy Kanengiser

Graduate Theses, Dissertations, and Problem Reports (ETD)

The first chapter investigates the labor market impacts of the Clean Slate Law, a policy designed to reduce barriers to entry by automating the sealing of criminal records. Using IPUMS CPS data from six states, I employ a difference-in-differences framework with individual fixed effects and an event study design to identify changes in employment outcomes. I find that the Clean Slate policy increases employment by 0.33 percentage points and weekly hours worked by 0.44 hours (approximately 24 minutes). Full-time employment rises, while self-employment declines by 0.12 percentage points, suggesting a shift from informal to more stable, formal jobs. These employment …

The Systematic Devaluation Of Legal Scholarship In Criminology And Criminal Justice, Henry F. Fradella

Touro Law Review

Certain bibliometrics have become important indicators of scholarly impact despite their many weaknesses. This Article presents data demonstrating the shortcomings of using citation counts and journal impact factors for law-based scholarship. Moreover, the Article argues that reliance on these flawed metrics is just one example of how scholars in criminology and criminal justice (“CCJ”) systematically devalue legal scholarship.

The Article begins by offering quotations from social scientists that provide insights into the negative ways they view legal scholars and their work. It also quotes from interviews conducted with CCJ scholars who hold a law degree and either earned or are …

Criminal Procedure Without Consent, Kate Weisburd

Faculty Scholarship

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and …

Penggunaan Unconventional Weapons Dalam Konflik Bersenjata Modern, Fadhillah Wahid Pramudya Aldiansyach

Jurnal Hukum & Pembangunan

The use of unconventional weapons such as cluster munitions, white phosphorus, nuclear weapons, artificial intelligence-based autonomous systems (AI/LAWS), and military neurotechnology is increasingly dominating modern armed conflicts. The characteristics of these weapons, particularly their widespread effects, uncertainty of control, and potential for automatic escalation, can pose serious challenges to the application of the principles of distinction and proportionality in International Humanitarian Law (IHL), especially when used in densely populated areas. The modernization of nuclear systems, the accelerated integration of AI into military command, and the emergence of neurotechnology indicate a regulatory gap that could potentially undermine humanitarian protection. This study …

Internal Or External: An Exploration Of The United States Police Chief Hiring Process, Kayleigh Walker

Williams Honors College, Honors Research Projects

This paper explores the hiring processes of police chiefs across the United States, focusing on internal versus external hiring practices. The goal of this research was to identify common trends, legislative barriers, and the impact of leadership on the hiring process through historical context, legal analysis, and case studies. The findings suggest that internal hires dominate chief appointments, though external hires are often sought during crises. The paper concludes with recommendations for future research and highlights the need to more fully understand this phenomenon. Understanding the processes and limitations surrounding the appointment of new leadership is critical to reform and …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 27, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Breaking The Chain: How An Alternate Dispute Resolution Process Can Be Used In The Criminal Justice System For First-Time Non-Violent Criminal Offenders, Leora Perlstein

Cardozo Journal of Conflict Resolution

The criminal justice system is deeply rooted in our history. There are traditional views on how it should be run and conducted. “Founded on the concept that crimes against an individual are crimes against the state, our justice system prosecutes individuals as though they victimized all of society.” Traditionally, when individuals commit a crime, they go through the process of receiving a ticket—or if they commit a particular violent crime they will be immediately arrested—and then they go through the process of appearing in court for an arraignment in which they are “read the charges against [them]” and are either …

The Reality Of The Good Faith Exception, Michael Gentithes, Matthew Tokson

Akron Law Faculty Publications

This Article has reexamined the law and theory of the good faith exception. It fnds that the exception, originally confned to narrow circumstances, is turning into a protection for nearly any investigatory activity with an arguable connection to an existing precedent or statute. Our study is the frst to empirically demonstrate the exception’s substantial infuence on modern Fourth Amendment law. Courts rely on the exception with remarkable frequency, and a large proportion of courts invoking the exception avoid any substantive constitutional ruling, stunting the development of Fourth Amendment doctrine. Further, our close theoretical examination of the good faith exception reveals …

Harvesting The Grand Jury’S “Lay Expertise” In Officer-Involved Shootings, Michael Gentithes

Akron Law Faculty Publications

Officer-involved shootings put prosecutors in a bind. While prosecutors normally dominate the pretrial investigation and charging process, these tragedies force prosecutors to change their approach. The incident often pits the victim’s family and community, who feel the case symbolizes a biased and unjust system, against officers and departments, who feel attacked for following their training in a high-stress situation. Prosecutors seek a result that preserves their support from both groups. To resolve this quagmire, prosecutors pass the buck, asking grand jurors to make charging determinations despite their tenuous understanding of the system, their powers, or their role. Many scholars have …

Racializing Three Strikes, G. Ben Cohen, Justin D. Levinson, Koichi Hioki

Akron Law Faculty Publications

"Three Strikes” laws sit at the fulcrum of racial disparities and mass incarceration. Despite clarity across decades that such laws have served to disproportionately punish Black Americans, legislatures have blessed them, courts permit them, prosecutors charge them, and juries convict based on them. Although it has long been clear that these laws have played a key role in the racialization of America's criminal justice system, less clear are the mechanisms that drive and permit the embrace of this racialization. In this Article, we test empirically in a national study the hypothesis that Three Strikes laws exist because of race, are …

Countries As Laboratories: Reflections On Sierra Leone’S Amended Anti-Human Trafficking Law, Andrea L. Dennis

Scholarly Works

Sierra Leone’s improved anti-trafficking laws align with global norms, but enforcement remains weak due to socio-economic realities and Western deterrence mismatches, limiting effective prosecution despite recent legislative reforms.

Understanding Brady Violations, Jennifer Mason Mcaward

Journal Articles

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most …

Contract Or Prison, Sadie Blanchard

Journal Articles

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the …

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

Crimes Against Humanity And Customary International Law, Leila Nadya Sadat

Scholarship@WashULaw

A draft text of a treaty on the prevention and punishment of crimes against humanity was finally sent to negotiations by the U.N. General Assembly on December 4, 2024, after six long years of advocacy by States and civil society. Questions remain, however, with regard to how crimes against humanity will be defined in the new treaty. On the one hand, some States have embraced a definition of crimes against humanity that tracks Article 7 of the Rome Statute of the International Criminal Court (“ICC”). Other States have rejected Article 7 as the basis for the new treaty, but theirs …

Ten Years And Ten Miles: Reflecting On "Ferguson", Benjamin Levin

Scholarship@WashULaw

This Essay serves as the introduction to a symposium on the ten-year anniversary of Michael Brown's death in Ferguson, Missouri and the subsequent protests and uprisings across the country. The authors look back on the past decade—their own experiences and our experiences as a nation—to consider the impacts of the Ferguson uprisings and the landscape of criminal justice and racial justice advocacy, scholarship, and teaching today. In this Essay, I provide a brief introduction to the Volume and essays that follow. In Part I, I situate the Ferguson uprisings in the broader context of activism responsive to racial injustice in …

A Liberty-Balancing Approach To Crime, Sheldon Evans

Scholarship@WashULaw

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads …

Auditing Criminal Justice Minimalism, Trevor George Gardner

Scholarship@WashULaw

If criminal justice minimalism is a shared principle among criminal law scholars, it can help to clarify the quality of our disagreements. Every normative proposal in the criminal legal literature can be held to the minimalist standard—audited, so to speak, to account for the policy author’s minimalist claims. To this end, this Essay proposes a four-step framework by which to evaluate adherence to the minimalist principle, where each step serves as a hub for pointed scholarly debate regarding the path to minimalist criminal justice.

An Anthology Of Interference In Law School Clinics, Peter A. Joy, Robert R. Kuehn

Scholarship@WashULaw

An Anthology of Interference in Law School Clinics explores interference in law school clinics in the United States, addressing its long history and the legal ethics, academic freedom, and First Amendment responses to that interference. Law clinics have faced interference in their representation of clients from elected officials, business groups, alumni and, at times, even their own school administrators. This interference has targeted clinics for providing individuals and nongovernmental organizations with legal representation on important matters, including racial and gender discrimination, environmental issues, prisoner rights litigation, death penalty cases, and immigration and human rights matters. In each instance, the interference …

The Rule Of Law In Armed Conflict, Hitoshi Nasu

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

A fundamental problem in the relationship between war and law has emerged, with two diverging approaches to conceptualizing how law applies to the conduct of hostilities: the operational application for the implementation of legal obligations during combat operations, on the one hand, and the adjudicative application for prosecution and reparation, on the other. Diverging approaches stem from institutional and practical constraints on adjudication, testing the fundamental premise upon which international law operates as a political project to manage international order under the rule of law. This article addresses the doctrinal manifestation of this trend and articulates the parameters in which …

Flawed Framework, Fatal Discretion: Unraveling Implicit Bias In Capital Punishment Decisions, Justin D. Levinson, Rachel G. Schaefer

Case Western Reserve Law Review

No abstract provided.

Tribute To Professor Kevin C. Mcmunigal, Peter A. Joy

Case Western Reserve Law Review

No abstract provided.

How South Dakota Can Criminalize Child Sexual Grooming, Jackson Marnette

South Dakota Law Review

In 2023, the South Dakota Legislature proposed and rejected Senate Bill 94, which would have criminalized child sexual grooming. South Dakota, like most states, lacks a law that effectively deters potential child sexual abusers from initiating the child sexual abuse process. Other states’ grooming laws have been challenged on constitutional grounds with differing results. This article considers the benefits of grooming laws, the pros and cons associated with other states’ passed legislation, and any issues with Senate Bill 94’s language. The article concludes with a legislative proposal based on child sexual grooming academic theory.

The Carceral State(S), Esther K. Hong

Michigan Journal of Race and Law

The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state.

Although the term often appears without an express definition, the limited ones that …