Digital Commons Network^™

Civil Means To Criminal Ends, Kathryn Ramsey Mason

Washington and Lee Law Review

The divide between the civil and criminal legal systems is one of the most fundamental distinctions in American law. There are laws, however, that do not fit clearly into either category and the Supreme Court’s jurisprudence on how to categorize these statutes has been murky. Crime-free rental housing ordinances, which encourage or coerce private landlords into evicting tenants for a single incident of criminal activity that does not need to result in a conviction, are an example of the laws that occupy this middle ground. Local legislatures designate these laws as civil statutes and use them as a means to …

Use Of Force In Policing: Do Female Police Officers Use Unjustifiable Force As Often As Male Officers?, Carma Dobson

Theses

Use of force (UOF) is a common practice in policing. My study focuses on the disposition of the use of unjustifiable force in policing. Utilization of pre-existing data with 5,771 use of force incidents from the New Orleans, Louisiana police department in the years of 2016-2021 produces an answer to the research question: Do female police officers use unjustifiable force as often as male officers? The chi-square test of independence results in my study indicates that there is no statistical difference between males and females.

Solving A Sixth Amendment Crisis: The Case For Resource Parity In Georgia’S Indigent Defense System, Meagan R. Hurley

Mercer Law Review

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles …

Expanding Drug Courts And Alternative Justice Courts In West Virginia: Implementing Innovative And Restorative Justice Practices, Emily Ogden

West Virginia Law Review

The United States has the highest incarceration rate of any country in the world. Alarmingly, West Virginia’s incarceration rate is even higher. West Virginia’s staggering incarceration rate can largely be attributed to the increased criminalization and prosecution of individuals experiencing addiction. This Note considers what actions can be taken to limit incarceration and recidivism in West Virginia. The solutions proposed by this Note also aim to limit the collateral consequences of incarceration in West Virginia because many of West Virginia’s current issues are only exacerbated by incarceration. This Note reviews alternative justice methods and notable alternative justice courts across the …

The Abolition Of Woman, Lynne Marie Kohm

Cardozo Journal of Equal Rights & Social Justice

The article argues that modern feminist jurisprudence, while initially aimed at advancing women's rights, has deviated from its original goals and now contributes to the erosion of the unique identity and value of women. This shift is evident in areas such as reproduction, gender fluidity, and motherhood, where legal and academic discourse increasingly deconstructs the concept of womanhood, leading to its potential abolition.

The Supreme Court And The Federalist Society Network: The Conversation That Determined Whose Vote Counts, Deborah Toscano

Cardozo Journal of Equal Rights & Social Justice

The article examines the role of the Federalist Society Network (FSN) in shaping the Supreme Court's decision in Shelby County v. Holder, which invalidated Section 4 of the Voting Rights Act (VRA). The FSN's legal framework, emphasizing state sovereignty and the Tenth Amendment, influenced the Court's expansion of the "equal sovereignty" doctrine, leading to the dismantling of a key provision of the VRA. This decision reflects a broader shift in federalism, prioritizing state autonomy over federal oversight in voting rights.

Who Gets To Reap What They Sow? Addressing The Exclusion Of Undocumented Immigrants From Income Tax Benefits And Designing A Solution, Gabriela Amaral

Cardozo Journal of Equal Rights & Social Justice

The note argues that undocumented immigrants significantly contribute to the U.S. tax system, including Social Security, but are disproportionately excluded from receiving benefits, raising concerns about economic fairness and equal protection under the law. It advocates for a more inclusive policy, particularly through work authorization, to address this inequity.

Annotated Legal Bibliography

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

Distorted Burden Shifting & Barred Mitigation: Being A Stubborn 234 Years Old Ironically Hasn’T Helped The Supreme Court Mature, Noah Seabrook

Journal of Law and Health

This Note explores the intricate relationship between emerging adulthood, defined as the transitional phase between youth and adulthood (ages 18-25), and the legal implications of capital punishment. Contrary to a fixed age determining adulthood, research highlights the prolonged nature of the maturation process, especially for individuals impacted by Adverse Childhood Experiences (ACEs). The Note challenges the current legal framework that deems individuals aged 18 to 25 who experienced ACEs as eligible for capital punishment, highlighting the cognitive impact of ACEs on developmental trajectories. Examining cases like Dzhokhar Tsarnaev and Billy Joe Wardlow, this Note argues that courts often bypass mitigating …

Fixing Disparate Prosecution, Shima Baradaran Baughman, Jensen Lillquist

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

America's system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse, and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance other than to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But …

Two Is Not Always Better Than One: Concurrent Jurisdiction In Indian Country And The Withering Of Tribal Sovereignty Following Mcgirt And Castro-Huerta, Marina Berardino

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

There is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence--over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often, the perpetrators are non-Native, which creates jurisdictional issues. In most states, the only sovereign with the authority to prosecute non-Indian-on-Indian crimes is the federal government. Yet, federal law enforcement often does not investigate these crimes, and federal prosecutors ultimately decline to prosecute many sexual assault and domestic violence crimes in …

Restorative Constitutionalism, David E. Landau, Rosalind Dixon

Washington and Lee Law Review

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at …

Supporting Healthy Futures: Capitalizing On Medicaid’S Epsdt Medical Necessity Standard, Teressa Colhoun

Washington and Lee Law Review

Youth mental health is in crisis. Children report increased rates of suicidal ideology, depression, and anxiety. Diagnosis rates soar. Pediatric mental health care remains difficult to access. When services are accessible, they are costly—often sending families into medical debt.

This Note discusses Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) benefit. Specifically, it studies the EPSDT benefit’s creation, structure, and administration. This Note focuses on the context in which the EPSDT benefit operates, particularly how health care financing models impact benefit administration. It suggests that the EPSDT benefit has the capacity to address crucial gaps in pediatric mental health …

Specialty Courts: Time For A Thorough Assessment, Emily F. Wood, Monica K. Miller, Tatyana Kaplan

MC Law Review

Broadly, the purpose of specialty courts is to address the needs of the individuals in the criminal justice system to reduce recidivism. Most specialty courts adopt the philosophy that the criminal justice system can do more than just impose sanctions; it can address underlying social and health problems that contribute to criminal behavior. The purpose of this article is to discuss the general advantages and disadvantages of specialty courts and to highlight the importance of using research evaluations to determine if the benefits of specialty courts outweigh the costs. This will help determine if courts have achieved their goal of …

Public Opinion And Its Potential Impact On The U.S. Supreme Court, Savannah Medlin

Senior Honors Theses

The Supreme Court of the United States has a fundamental role in the interpretation of the Constitution and the configuration of the legal landscape of the country. But, while the Framers isolated the Court from political pressures, the Court is not removed from the impact of public opinion. This essay considers the effect of public opinion on Supreme Court rulings by reviewing studies and cases to discover the part public opinion plays in the courtroom. My findings imply that public opinion impacts the Court. There are limited ways by which the Court can prevent this impact. I emphasize that the …

The Complicit Canon Of Criminal Law: A Critical Survey Of Syllabi, Casebooks, And Supplemental Materials, Robin Peterson

University of Michigan Journal of Law Reform

This Note analyzes the learning objectives, casebook readings, and supplemental sources that thirteen criminal law professors assigned over fifteen years and argues that the current approach to teaching criminal law is complicit in perpetuating the injustices of the American criminal legal system because it fails to adequately interrogate the carceral state and does not prepare students to become ethical practitioners or policymakers of criminal law. This paper calls for a fundamental rethinking of the purpose of teaching criminal law and recommends a reform orientation, which could be implemented through a variety of course structures.

The Shadow Of The Law Of The Police, Adam A. Davidson

Michigan Law Review

A review of Shielded: How the Police Became Untouchable. By Joanna Schwartz.

What Is A Prison?, Grace Y. Li

Michigan Law Review

A review of The Idea of Prison Abolition. By Tommie Shelby.

"Silent Revolution": The Rockefeller Foundation's Invisible Influence On The Model Penal Code, Daniel Butler Friedman

Articles & Chapters

For over a hundred years, rich families have been channeling their wealth through private foundations to remake American society, but their immense impact on the law is still poorly understood. This article begins to fill that gap by studying the almost completely unknown origins of one of the most important reforms in the history of American criminal law: the Model Penal Code ("MPC"). To show how the MPC was influenced by its primary funder this article presents unpublished documents from the archives of two of the most important private organizations in American law: the American Law Institute ("ALI") and the …

Innocence Through An Intersectional Lens: An Examination Of Women And Wrongful Convictions, Briana Paige

Sociology & Criminal Justice Theses & Dissertations

According to The National Registry of Exonerations (2022), nearly 40% of all exonerations involve a no-crime wrongful conviction. While women make up less than 10% of all exonerees, nearly 73% of exonerated women were originally convicted of crimes that never happened, compared to only 38% of exonerated men. Despite their prevalence, the topic of no crime wrongful convictions is extremely understudied in the wrongful conviction literature.

Additionally, since prior research on wrongful convictions has been primarily male centered, the likelihood that a woman’s case will be accepted to be reviewed for innocence is significantly lower than men (Free and Ruesink, …

The Empirics Of Criminal Federalism, Scott Sullivan, Iben Sullivan

Journal Articles

No abstract provided.

Burden Of The Bargain: Ineffective Assistance Of Counsel Claims In The Absence Of A Plea Offer, Sriram H. Ramesh

Fordham Law Review

The modern criminal justice system in the United States is a “system of pleas.” Plea bargains have largely supplanted trials as the primary method of resolving criminal proceedings in this country. Acknowledging their prevalence, the U.S. Supreme Court has held that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process. Thus, defendants may bring ineffective assistance of counsel (IAC) claims for alleged ineffectiveness during the plea-bargaining phase.

In two companion cases, Missouri v. Frye and Lafler v. Cooper, the Court held that its two-pronged test for IAC, laid out in Strickland v. Washington, …

Rethinking Federal Inducement Of Pretext Stops, Farhang Heydari

Vanderbilt Law School Faculty Publications

Few topics in policing have received more attention than pretextual traffic stops—traffic stops made for crime-fighting purposes. Community leaders, legislators, police executives, and even presidents have recognized that the overuse of pretext stops has deleterious effects, including racially disparate enforcement, needless death, and degraded public trust in law enforcement. The result is a growing movement at the state and local level to roll back the widespread use of this tactic.

As promising as these developments are, most discussions of pretext stops largely omit a key player that drives the problem: the federal government. Presidents from Bush to Biden have decried …

Foreword: The Bench, The Bar, And Baltimore Law, Ronald Weich

University of Baltimore Law Forum

No abstract provided.

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

William & Mary Law Review

In The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era …

What Figures Lurk On Madame Elysé’S Path? Reflections On Philippe Sands’ The Last Colony, Diane Marie Amann

Scholarly Works

One person’s life forms the core around which Philippe Sands’ The Last Colony explores the events leading up to the advisory opinion on the Legal Consequences of Chagos Archipelago from Mauritius in 1965. That person is Liseby Bertrand Elysé, who was born in 1953 in Chagos, then forcibly removed to Mauritius in 1973. Her efforts to return home eventually brought her to a 2018 hearing at The Hague, where she spoke to the International Court of Justice bench by means of a subtitled video. This essay, which appears in a symposium issue on Sands’ book, investigates the ethics, the effectiveness, …

Amdip Annual Meeting Of Law School Diversity Professionals: Hosted By Roger Williams University School Of Law: April 23-25, 2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Legal Imitation Game: Generative Ai’S Incompatibility With Clinical Legal Education, Jake Karr, Jason Schultz

Fordham Law Review

In this Essay, we briefly describe key aspects of [generative artificial intelligence] that are particularly relevant to, and raise particular risks for, its potential use by lawyers and law students. We then identify three foundational goals of clinical legal education that provide useful frameworks for evaluating technological tools like GenAI: (1) practice readiness, (2) justice readiness, and (3) client-centered lawyering. First is “practice readiness,” which is about ensuring that students have the baseline abilities, knowledge, and skills to practice law upon graduation. Second is “justice readiness,” a concept proposed by Professor Jane Aiken, which is about teaching law students to …

Ai, Algorithms, And Awful Humans, Daniel J. Solove, Hideyuki Matsumi

Fordham Law Review

A profound shift is occurring in the way many decisions are made, with machines taking greater roles in the decision-making process. Two arguments are often advanced to justify the increasing use of automation and algorithms in decisions. The “Awful Human Argument” asserts that human decision-making is often awful and that machines can decide better than humans. Another argument, the “Better Together Argument,” posits that machines can augment and improve human decision-making. These arguments exert a powerful influence on law and policy.

In this Essay, we contend that in the context of making decisions about humans, these arguments are far too …