Digital Commons Network^™

Whatcha Gonna Do When They Come For You? Assessing The Damage Associated With The Rise Of Reality Tv Policing And Proposing Avenues For Accountability And Reform, Danielle Taylor

Chicago-Kent Law Review

No abstract provided.

Breaking Bad- The Third Circuit's View In United States V. Lewis Mischaracterizes Uniformity In Federal Sentencing, Noah Swanson

Villanova Law Review (1956 - )

No abstract provided.

Indigenous Justice Initiatives: A Summary Current To 2024, Kito Romero, Dara Heravi, Karen Drake, Yanika Mullings-Smith

Commissioned Reports, Studies and Public Policy Documents

This resource is intended to provide a guide to Indigenous justice initiatives across what is now known as Canada, based on publicly available information. The guide includes information on independent Indigenous courts that operate under the authority of an Indigenous people and separately from the Canadian legal system, Indigenous Persons Courts that operate within the Canadian legal system yet apply or uphold Indigenous laws, and restorative justice initiatives available to Indigenous peoples. This resource also includes academic literature on Indigenous laws, Indigenous justice models and practices, evaluations of existing Indigenous justice initiatives, and international comparative works. The focus is on …

How Not To Teach Criminal Law, Evan D. Bernick

Chicago-Kent Law Review

No abstract provided.

Discrimination In Contractual Performance: Theory, Evidence, And Preliminary Policy Prescriptions, Meirav Furth-Matzkin

Washington Law Review

This Article examines the often-overlooked practice of “selective performance” of standard form consumer contracts—where sellers permit employees to exercise discretion by waiving or modifying contractual terms to maintain customer satisfaction. While such flexibility can benefit consumers, it raises serious concerns about discrimination. Through both theoretical analysis and empirical evidence, this Article demonstrates that discretionary performance can disproportionately favor certain consumer groups, particularly along racial and gender lines, leading to biased and inequitable outcomes. Drawing on examples from diverse sectors, including retail, insurance, and mortgage services, the Article highlights how marginalized communities, especially Black consumers, frequently face harsher treatment and greater …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

Faculty Publications

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

Redressing Judicial Misbehavior: An Integrated Approach To Judicial Immunity, Nancy Amoury Combs

Faculty Publications

Immunities generate intense public interest and controversy. Whether it is the sweeping presidential immunity that former President Trump has claimed or the qualified immunity that rogue police invoke to evade financial responsibility for their brutality, immunities stand as a highly contested aspect of the American legal system. Judicial immunity incites similar controversy. American judges possess absolute immunity from civil suits for their judicial acts, so victims are barred from seeking civil compensation, even against judges who engage in purposeful or malicious misconduct from the bench. For decades scholars have sought to curtail absolute judicial immunity, but they have overlooked a …

All Bark, No Bite: How The Lone Star "Junk-Science Writ" Could Reinvigorate Federal Habeas Review, Robert Harry Saylor Iii

Hofstra Law Review

No abstract provided.

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

Dimensions Of Prosecutor Decisions: Revealing Hidden Factors With Correspondence Analysis, Megan S. Wright, Cindy Cain, Shima Baradaran Baughman

Faculty Scholarship

Despite the significant impact of prosecutorial discretion on criminal justice outcomes, there are very few large-scale studies of state and local prosecutor decision-making. Our previous empirical research demonstrated that a defendant’s race and class do not affect prosecutorial charging decisions and revealed a gap in the literature about factors that do influence prosecutorial charging decisions and sentencing recommendations. Accordingly, we designed a study to obtain more information about prosecutor discretion and decision-making. Over 500 prosecutors from across the United States completed our vignette-based experiment and survey, which produced quantitative and qualitative data. We transformed these data to use Correspondence Analysis …

Revolutionizing Justice: Law Enforcement Through The Lens Of Progressive Law, Musmuliadin Musmuliadin, Erlyn Indarti, Nur Rochaeti

Indonesia Law Review

When government functions must be carried out and cannot be halted, even if the law does not clearly or completely regulate them, the role of discretionary authority (discretion) becomes crucial. This is particularly evident in the discretionary authority held by the Indonesian National Police, which is essential both for the police themselves and in the execution of their duties in conducting investigations and prosecutions. This study focuses on the application and implementation of discretion by the police in conducting investigations and prosecutions, and how a progressive legal framework can revolutionize the pursuit of justice. By employing a qualitative analysis and …

It Takes A Village: Why And How Georgia Should Afford Greater Protection To Juveniles During Police Interrogations, Lillie Tate Andrews

Mercer Law Review

On June 27, 1998, Lori Duniver discovered that her five-year-old daughter, Devan, was missing from her home in New Philadelphia, Ohio. The following day, Devan’s body was found in a wooded area near her home. The Duniver family’s twelve-year-old neighbor, Anthony Harris, was ultimately convicted of Devan’s murder and sentenced to a term of incarceration to last until his twenty-first birthday. However, on June 7, 2000, the Court of Appeals of Ohio reversed his conviction on the ground that the juvenile court had improperly denied a motion to suppress his confession, which was coerced in violation of his Fifth Amendment …

Interrogating Miranda’S Custody Requirement, Lauren E. Clatch

North Carolina Law Review

No abstract provided.

Case Brief: State V. Abbitt, Kathryn Turk

North Carolina Law Review

No abstract provided.

Case Brief: Carolina Youth Action Project V. Wilson, Megan Mills Rash

North Carolina Law Review

No abstract provided.

The Rule Of Interlegality, Nicole Roughan

Buffalo Law Review

A “recognition model of legality” grounds legality upon the normative significance of recognition of the role of the official of law, and the requirements of a moral relation of recognition between law’s officials and subjects. On this model, plural overlapping claims to legality can undermine the rule of law by disrupting recognition of both the role of the official and the moral relation of legality between officials and subjects. This Essay examines the legality deficits that arise from conflicting recognitions of officiality and subjection in contexts of overlapping state and Indigenous legal orders. In such contexts of plural overlapping claims …

Toxic Narratives, Toxic Communities, And Enforcement Of Environmental (In)Justice, Alyse Bertenthal

Washington Law Review

The United States has committed to enforce environmental justice in ways it never has before. A spate of new policies aims to increase resources for environmental agencies’ enforcement sections, improve training for environmental enforcement staff, and ensure community engagement in environmental enforcement decision-making. Yet there exists mounting evidence that enforcement of environmental laws happens less frequently and less vigorously in low-income and minoritized communities.

We need to understand why that is happening. Many commentators, opining from a distance, point to insufficient resources for environmental enforcement and legal and political constraints on environmental agencies. While not discounting these reasons, this Article …

Debunking Criminal Restitution, Lula A. Hagos

Michigan Law Review

Criminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution.

Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in …

The Case For Specialty Dockets: The Intersection Of Judicial Intervention, Psychiatric Hospitalization And Involuntary Commitments, Community-Based Services, And Public Safety, The Honorable Jacqueline S. Mcclenney

University of Richmond Law Review

Defendant Doe was diagnosed with a significant mental illness in 2015. His adult diagnosis of paranoid schizophrenia came after having been an adjudicated delinquent following multiple status offenses as a juvenile. Defendant Doe was placed into foster care as a result of his biological father’s incarceration and his mother’s unwillingness to seek treatment for her substance use disorder. Mother, father, and now adult Defendant Doe were all eligible for services and attempted to receive them through the local community services board (“CSB”).

Defendant Doe received psychiatric and supportive services through the CSB. Defendant Doe again entered the criminal justice system …

Colonizing By Contract, Emmanuel H. Arnaud

Articles

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Distorted Narratives In The Treatment Program Complex, Evelyn Lia Malavé

Fordham Law Review

Problem-solving courts and alternatives to incarceration have been both celebrated as successful attempts to address the factors that lead to defendants’ involvement in the criminal legal system and critiqued as ineffective reforms that worsen mass incarceration. Specifically, critiques of the “treatment program complex” have tended to focus on how it harms defendants by exposing them to higher levels of incarceration if they fail to complete court mandates. But these critiques have failed to account for another way the treatment program complex harms defendants: by suppressing their voices regarding what kind of help they need and how they are affected by …

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan Feingold

Faculty Scholarship

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a …

Colonizing By Contract, Emmanuel Hiram Arnaud

Faculty Scholarship

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Roger Williams University 2024 President's Report: A Message From President Miaoulis, Roger Williams University

Life of the Law School (1993- )

No abstract provided.

Wills, Trusts, And Estates, Allison A. Tait, Hunter M. Glenn

University of Richmond Law Review

This year could be considered quiet in both legislative and judicial activity, lacking as it was in any substantial new legislative enactments or major opinions from the Supreme Court of Virginia on core wealth transfer issues. Nevertheless, a set of modest legislative changes helped bring the rules for revocable trusts in line with the rules for wills, standardizing estate planning and wealth transfer regulation, while other changes also brought clarity to existing rules by amplifying procedures and providing additional de- tail for administrative processes. In the judicial setting, while guidance for this practice area was primarily provided by the Court …

The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility, Dr. Destaw A. Yigzaw

Brooklyn Journal of International Law

Under the Rome Statute, situations are referred to the International Criminal Court (“ICC” or “Court”) either by a state party or the Security Council. In recent years, however, referrals from both sources have become difficult to come by. Instead, there is an evolving practice of referrals by a coalition of third states parties (“group referrals”). Yet, a group referral as a trigger mechanism does not have an explicit textual basis under the Rome Statute (“Statute” or “ICC Statute”). There is no rationale for it either, since a referral by a single state party is all that is needed to trigger …

A Broken Shield: Ineffective Assistance Of Counsel Claims In Cases Of Racist Defense Attorneys, Sophia Sabet

Fordham Law Review

Defense attorneys are not immune to racism, and a defense attorney who holds racist beliefs about their client’s race fundamentally calls into question the representation received. Under the Sixth Amendment, all criminal defendants have the right to the effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the U.S. Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel’s performance was deficient and that the deficiency prejudiced the defense. The Supreme Court supplemented the Strickland standard in Cuyler v. Sullivan and United States v. Cronic, holding that a conflict …

Smile! You’Re On Camera: Police Use Of Automatic License Plate Readers And The Need For Statewide Legislation, Cailyn Hoang

University of Dayton Law Review

No abstract provided.

“Standing” In The Way Of Equality: Acheson Hotels, Llc, V. Laufer, Hayley R. Mullen

University of Dayton Law Review

No abstract provided.