Digital Commons Network^™

From Alienation To Rootedness: Discrimination Against Indigenous Peoples In The Philippines Through Education, Katrina Isabela F. Blanco

American University International Law Review

This article tackles the existing discrimination against indigenous peoples in the Philippines in law, policy, and practices. This article discusses indigenous peoples in context, the international and domestic legal framework on IP rights, and the legal (and moral) right to education and the right to indigenous education.

Originalism & Judicially-Enacted Religious Exemptions: Revisiting Employment Division Of Oregon V. Smith, Eric Russell Coykendall

CGU Theses & Dissertations

In the 1963 case Sherbert v. Verner , the Supreme Court read the First Amendment’s Free Exercise Clause to mean that, in certain cases, religious believers should be exempted from otherwise applicable laws. In 1990, the Supreme Court essentially overturned that framework in the case Employment Division of Oregon v. Smith . The Smith case has proved quite controversial, and numerous public-interest law firms, especially those that defend religious litigants, have regularly asked the Court to overturn it in favor of a re-application of the Sherbert precedent. Their contention is often that the Smith ruling is inconsistent with the original …

A Fourth Amendment Pathfinder: Stop-And-Frisk And Race, Emily Pratt

Upper Level Writing Requirement Research Papers

No abstract provided.

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Annual Report, Fiscal Year 2024, Tennessee. Department Of Correction

Annual Reports

This document is the annual report for the Tennessee Department of Correction during the fiscal year.

Negotiating Environmental Justice In Ukraine, Paul R. Williams, Sindija Beta

Case Western Reserve Journal of International Law

This Article examines the dynamics of negotiating environmental justice in Ukraine amid pressure from certain international actors for an Amnesty-Based Peace in Ukraine. While it is currently unclear how Russia’s war in Ukraine will end, it is likely that there will be significant discussion around forms of justice, including how to address the grave environmental damage Russia has caused in Ukraine. This Article looks at previous precedents of Amnesty-Based Peace in Angola, Haiti, and Uganda and decisions and commentaries by international actors to argue that appeasement has not fostered durable peace and is generally disfavored by judicial and non-judicial bodies. …

Victims’ Participation In An Era Of Multi-Door Criminal Justice, Béatrice Coscas-Williams, Hadar Dancig-Rosenberg, Michal Alberstein

Connecticut Law Review

Victims’ right to participate in their cases—to hear and be heard—has gained formal recognition in both common law and continental legal cultures over the past two decades. Paradoxically, even as victims’ rights are acknowledged, their participation in the judicial process is increasingly circumscribed due to the proliferation of abbreviated and efficiency oriented judicial procedures. Focusing on this paradox, this Article uncovers and analyzes the level of victims’ participation in an era of convergence and transformation of legal cultures and traditions. By exploring new ways to conceptualize the role of victims within contemporary criminal legal systems, this Article explores various and …

The Innocence Standard: Supreme Court Nominees And Sexual Misconduct, Lisa Avalos

Connecticut Law Review

Should the United States Senate allow judicial nominees who have been credibly accused of sexual misconduct to be seated on the Supreme Court? How should we handle these allegations when they arise during the vetting process? Despite the importance of these questions, lawmakers have failed to address them.

The contentious Clarence Thomas hearings in 1991 featured testimony from Professor Anita Hill and did much to raise Americans’ awareness about the prevalence of sexual misconduct in the workplace. Although Professor Hill subsequently called for the Senate to implement a process for addressing future sexual misconduct allegations against Supreme Court nominees, her …

Twins At Bat(Son), Strikes Are Out: Minnesota’S Opportunity To Restore Batson V. Kentucky By Eliminating Peremptory Strikes, Samuel Buisman

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Prosecutorial Independence Lost: How Prosecutorial Bureaucracy Is Politicized In South Korea, Neil Chisholm

Emory International Law Review

How is prosecutorial independence lost? How does a prosecution system’s design affect its political independence? This Article analyzes the inner workings of South Korea’s Prosecutors’ Office, which adheres to the Continental European style of prosecutorial organization and independence that emphasizes mechanisms of bureaucratic accountability for prosecutors. Based on interviews with prosecutors, police, judges, lawyers, scholars, and activists, it shows how independence is lost in three key areas of prosecutorial activity: personnel policy, investigations, and charging decisions. This article argues that aspects of the Continental tradition make prosecutors vulnerable to politicization.

Personnel policy has selected prosecutors meritocratically at young ages, trained …

The Inadmissibility Of Victim Impact Evidence, Fernanda Gonzalez

UC Law Constitutional Quarterly

Currently, 41% of inmates on death row in the United States are Black, even though Black people make up only 13.6% of the total population in the country. Additionally, the data has repeatedly shown that states that do not have the death penalty have lower murder rates than states that do. Despite these disparities, more than half of states in the United States continue to allow capital punishment in some form as an alternative to a life sentence. These disparities were further exacerbated by the Supreme Court’s decision in Payne v. Tennessee, which allowed prosecutors to introduce victim impact evidence …

A Progressive Judiciary? Judicial Review And National Politics From Reconstruction To The Present, Joshua Braver, Gregory A. Elinson

College of Law Faculty Publications

Within legal academia, the conventional historical narrative is that the Supreme Court has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Citing this reactionary tendency, an influential and vocal group of progressive legal scholars have argued that progressives ought to stop defending judicial review and instead devote their energies to eliminating it, or at least aggressively curbing its use. These progressive critics of judicial review (our term) proffer two related historical claims. First, they assert, the Supreme Court has consistently been less progressive than congressional majorities and Presidents. Second, they suggest, even landmark …

Can The Excessive Fines Clause Mitigate The Lfo Crisis? An Assessment Of The Caselaw, Michael M. O'Hear

Faculty Publications

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful …

The Emerging Crime Of Persecution Based On Sexual Orientation, Anthony J. Colangelo

Northwestern Journal of Human Rights

This Article argues that persecution based on sexual

orientation constitutes a crime against humanity under international law.

Unlike other scholarship that has focused on the definition of crimes against

humanity in the 1998 Rome Statute for the International Criminal Court—

which does not explicitly enumerate “sexual orientation” as a protected

classification—this Article looks to customary international law made up by

the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107

states enacted laws or revised existing laws decriminalizing sexual

orientation and/or categorizing sexual orientation as a protected

classification from discrimination. This is in addition …

Tyrannical Hoas And How To Reign In Their Foreclosure Power And Further Protect Homeowners, Juliette Koves

Faculty Scholarship

No abstract provided.

Sharma: The Erasure Of Both Group-Based Disadvantage And Individual Impact, Jonnette Watson Hamilton, Jennifer Koshan

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Sections 7 and 15 of the Canadian Charter of Rights and Freedoms both play a critical role in protecting members of disadvantaged groups from the harms of state action. In R. v. Sharma, released in November 2022, a 5-4 majority of the Supreme Court of Canada dismissed arguments under both sections in a claim that raised the impact on Indigenous offenders of a 2012 law that restricted the availability of conditional sentences. Our focus in this paper is on the doctrinal implications of the majority and dissenting opinions in Sharma for future section 15 and section 7 claims. We discuss …

No Child Left Confined: Challenging The Digital Convict Lease, Chaz P. Arnett

Journal of Health Care Law and Policy

The following is a lightly edited transcript of comments provided at the Journal of Health Care Law & Policy’s Spring Symposium entitled “Uneasy Alignments: The Mental Health Turn in The American Legal System.” This event was hosted on March 16, 2023, by University of Maryland Francis King Carey School of Law in collaboration with the University of Maryland School of Social Work’s Daniel Thursz Social Justice Lecture Series. The Symposium examined how legal systems, like child welfare and juvenile law institutions, use coercion to force engagement or compliance with often unproven therapeutic interventions. The presentation took on the question of …

Boiling Behind Bars: Exploring The Hidden Toll Of Extreme Heat On Mental Health In Texas Prisons, Sandra K. Miller

Social Work Theses - Archive

The State of Texas supports the largest prison system in the US and held 132,859 people in 100 units scattered across the state as of December 2023. Approximately 70% of Texas prison beds are not air conditioned, despite the state’s reputation for dangerously hot, humid summers. The State has officially recorded temperatures inside Texas prison facilities as high as 120 degrees with heat index values of over 150. Although there is a growing body of research on the negative physiological and psychological consequences of extreme heat among the general public, little is known about the physical and emotional toll of …

The Cost Of Justice At The Dawn Of Ai, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Justice isn’t free, but it might soon get much less expensive. Policies concerning issues such as arbitration, class actions, and plea bargaining depend on how much legal services cost, but the legal literature has generally ignored past and future cost trends and their implications. The result is a legal system that may change dramatically because of economic forces without active consideration of potential responses. Part of the reason for the lack of attention is that changes in legal productivity can be difficult to measure or forecast. Some commentators have concluded that the legal sector has become more expensive in recent …

Debunking Criminal Restitution, Lula Hagos

GW Law Faculty Publications & Other Works

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 …

Sex, Lies, & Videotapes: Denial Of Wrongs Against Women, Laurie S. Kohn

GW Law Faculty Publications & Other Works

“He totally denies it . . . he says it didn’t happen.” With that, former President Donald Trump dismissed all allegations against then-Senate candidate Judge Roy Moore for sexual misconduct with minors. While in office and since then, Trump has repeatedly displayed the power of denial in the face of allegations of wrongdoing toward women. Trump is largely right that denial works. He is not alone in considering an accused’s denial as the end of the story, even in the face of strong contradictory evidence. In doing so, Trump merely echoes a dominant attitude in the United States. Our culture …

Professional Norms At A Crossroads: Farhane And Its Implications For Legal Counsel, Hayley Sandoval

Cardozo Law Review de•novo

This Note examines the right to effective assistance of counsel during guilty pleas through the lens of the pending Second Circuit case Farhane v. United States. This case will have significant implications for the right to effective legal representation, particularly in terms of defense attorneys’ duty to warn clients of the potential risk of denaturalization as a consequence of pleading guilty. In May 2024, the court reheard Farhane en banc and will issue a decision later this year. If this opinion aligns with the court’s initial decision, it will severely limit the rights of all defendants in criminal proceedings in …

Comparative Analysis Of Prosecutor-Led Diversion Programs: Insights To Japan’S Suspension Of Prosecution For Recidivism Prevention, Mio Hagino

LL.M. Essays & Theses

Around 60% of all crimes in Japan are committed by repeat offenders, and therefore preventing recidivism is a central concern in Japan. Recognizing the importance of early intervention, some prosecutors’ offices collaborate with social workers and provide necessary measures for recidivism prevention when prosecution is suspended. To promote prosecutor-led recidivism prevention, there is an ongoing discussion to legislate the approach currently taken by prosecutors’ offices. However, concerns remain about procedural fairness, transparency of prosecutorial discretion, and collaboration with other agencies. In the United States, prosecutor-led diversion programs are adopted in many states, with ongoing research on their effectiveness and challenges. …

Navigating Sexual Consent In Japan, Samara Mizutani Cesar

Graduate Theses/Dissertations

Employing an exploratory sequential research design, including focus groups and an online survey, this thesis explores the factors influencing how Japanese people navigate the gray zones of sexual consent. This study not only addresses gaps in the literature on sexual consent but also provides a preliminary understanding of Japanese individuals’ perceptions, beliefs, behaviors, and experiences in ambiguous sexual interactions, which is particularly meaningful given Japan’s recent legal revisions and changing sociocultural landscape. Findings indicated the impact of traditional sexual scripts on consent perceptions, with gender and relationship norms contributing to the dismissal of sexual assaults within specific relationships. It was …

Killing Stays, Madalyn K. Wasilczuk

Faculty Publications

For decades, the Supreme Court has been suspicious of litigation under warrant in capital cases. The Court has described last-minute litigation as manipulative and dilatory, a result of gamesmanship by people on death row and their lawyers. With the confirmation of Justice Brett Kavanaugh in 2018, the Court began to extinguish the opportunity to assert death row detainees’ rights against unlawful death sentences and executions, reaching a crescendo of stay vacaturs and denials during the Trump executions. Despite this sea change in capital stay jurisprudence and practice, few scholars have focused on the capital stay as a vital component of …

What Are We Waiting For? A Collection Of Poems And Essays About Family, Love, Loss, Time, And Hope, Right/Write To Heal, Skye Adams, D W, N L, D G, Jillian Foley, Madison Burke, Erica King, Becky Wurwarg

Justice Policy

This anthology is a collaboration with the Opportunity Scholars project and the Right/Write to Heal Initiative. The collection tells the stories of women and their families who have been impacted by incarceration in Maine and New York, the pathways that brought them to justice system involvement, and what inspires them to remain hopeful. These stories of family, love, loss, time, and hope were written by residents at the Southern Maine Women’s Reentry Center and the Women’s Center at the Maine Correctional Center, and partners from New York who participated in a weekly creative writing project together. The authors and editors …

Crawford's Revolutions, Edward K. Cheng, Monica A. Miecznikowski

University of Michigan Journal of Law Reform

Crawford v. Washington, the starting point for the Supreme Court’s modern Confrontation Clause jurisprudence, has long been described as a “revolution.” At the time of the Crawford decision, it was perfectly natural for commentators to view it as revolutionary: The case upended the existing doctrinal framework under Ohio v. Roberts, which grounded Confrontation in hearsay doctrine. In its place, the Supreme Court placed Confrontation doctrine on originalist underpinnings, requiring that any “testimonial” statement be subject to cross-examination. The resulting uncertainty was destabilizing, and in the intervening years, courts, practitioners, and commentators alike have struggled to predict and interpret …

Harmonizing Divergent Purposes Of Punishment In Jewish Criminal Law: Integrating Contemporary Religious, Criminological, And Legal Perspectives, Jonathan Hasson, Abraham Tennenbaum

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Rethinking Crime And Punishment: Women Who Kill Their Abusers In South Africa, Rebecca Gore

Michigan Journal of Gender & Law

The battered women’s movement in the United States was galvanized in the 1970s and ushered in a paradigm shift in how we understand domestic violence. For women who kill their abusers, the movement attempted to incorporate their lived experiences of domestic violence into legal doctrine. Decades later, the battered women’s movement has generated criticisms such as stereotyping women, failing to take an intersectional lens, and over-reliance on the carceral system. These lessons from feminists in the United States present cautionary tales for other contexts, especially for unequal societies impacted by domestic violence, crime, and mass incarceration. Prompted by personal experiences …

Senior Day 2024, University Of Michigan Law School

Commencement and Honors Materials

Program for the May 6, 2024 University of Michigan Law School Senior Day.