Digital Commons Network^™

Safe Sex In The Age Of Big Tech Feminism, Brenda Dvoskin, Thomas E. Kadri

Scholarship@WashULaw

Lawmakers and technology companies are regulating online sexuality in the name of feminism. Whereas libertarian ideals dominated early debates about internet governance, “safety” became a rallying cry to regulate online activity in the age of Big Tech. As these regulatory paradigms now clash once again, one trend remains: legislators across the political spectrum and companies around the world are devising interventions that purportedly keep people—and especially women—safe from the risks of online sexuality. Through law and technology, they are targeting everything from privacy invasions to unwanted messages to sexual deepfakes. We call this regulatory and ideological trend Big Tech feminism. …

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 …

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

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 …

Public Protest And Civil Unrest, Timothy Zick

Faculty Publications

Governments and officials must respond to protest-related civil unrest. How they do so is both an index of official respect for dissent and a measure of how committed governments are to democratic accountability. This Article examines official responses to civil unrest in connection with several recent high-profile demonstrations. In general, it concludes that governments and officials have relied on aggressive and increasingly draconian measures to quell protest-related civil unrest. Among other things, they have invoked emergency powers and used aggressive protest policing methods; dispatched federal agency personnel and threatened to deploy military forces to police demonstrations; enacted successive waves of …

Mechanisms For Including Publics In Administrative Governance, Nina-Simone Edwards

Library Scholarship

This project’s fourth concept paper rethinks public participation in administrative processes. Although participation mechanisms are theoretically designed to enable those affected by regulations to influence their development, it is often extremely difficult for members of the public to meaningfully engage with agencies. After discussing institutional failures of current participation mechanisms, this report develops a set of principles to guide the redesign of public participation mechanisms. These include involving publics earlier in the process, building both public and regulatory capacity for meaningful, two-way communication, and reframing expertise as a public good.

The paper then proposes specific mechanisms to optimize communication between …

Jurisprudence Of Problem-Solving Courts: A Study Of Structure, Success, And Sociological Theory, Lauren M. Boos

Graduate Student Theses, Dissertations, & Professional Papers

In response to the failures of mass incarceration and its disproportionate impact on marginalized communities, Problem-Solving Courts (PSCs) have emerged as alternatives to traditional prosecution. These courts employ therapeutic-informed and rehabilitative practices aimed at addressing the root causes of criminal behavior. While widely regarded as more effective than traditional courts, PSCs have developed largely without a formal theoretical foundation. This is notable given their alignment with Sociological Jurisprudence (SJ) and Therapeutic Jurisprudence (TJ), which view the legal system as a vehicle for promoting individual and community well-being.

Despite being celebrated as therapeutic innovations, PSCs often embody these principles unevenly. Using …

What's In A Name? Policing, Juliet., Shanée Brown

Scholarly Works

Child welfare" and "child protection" are misnomers. These terms do not accurately depict the investigatory nature of the system purported to help families, or at the very least, save endangered children. Contrary to public opinion, the "child welfare system" comprises of state actors who police parents and children. It is the naming of this system that convinces the public that these agencies are excised from the category of law enforcement, persuading many that the agencies engage in social work and not police work. Calling the system what it really is-family policing-is a step toward achieving justice for families adversely impacted …

The Savings Mirage, Sara Sternberg Greene

Faculty Scholarship

In the past, we did not worry much about elderly poverty because retirement was short for most Americans – a brief jaunt of post-work life was soon met with death. But with the 100-year life becoming a reality for more Americans, an elderly poverty crisis looms. The American dream of abundant retirement savings remains elusive for many, particularly low-wage workers. While government initiatives emphasize individual responsibility and financial education as a way toward retirement success, the reality is that governmental policies are barriers, including asset limitations that prevent those who receive public benefits from saving. This chapter urges reform in …

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

The Impact Of Covid-19 Pandemic Demands On By-Law Officer Wellness And Work, Harveen Randhawa

Theses and Dissertations (Comprehensive)

This research sheds light on how the rapid demand to enforce transitioning pandemic-related (and reopening) mandates impacts the wellness of bylaw officers in the context of resource strain. Ontario bylaw officers are at the forefront of the province’s response, enforcing lockdown rules to ensure community safety. This research is imperative in understanding how bylaw officers maintain their roles in municipal enforcement, while enforcing rapidly shifting COVID-19 regulations and moving forward into a post-lockdown climate. The research focuses on identifying and understanding the demands and resources that currently typify bylaw officers working in Southern Ontario. It further examines how the COVID-19 …

Normalizing Facial Recognition Technology And The End Of Obscurity, Woodrow Hartzog, Evan Selinger, Judy Hyojoo Rhee

Faculty Scholarship

This article argues that facial recognition technology is the most dangerous surveillance tool ever invented. Given the unique threats this morally suspect tool poses to privacy, civil liberties, human flourishing, and democracy, the only appropriate response is a ban. To justify our position, we explain why facial recognition is distinctive among biometrics, clarify how even seemingly benign and positive uses of the technology can trigger dangerous normalization dynamics, and pinpoint why current United States laws (with reverberations in the EU’s AI Act) are designed to accelerate a slippery slope that makes mass surveillance nearly inevitable. Our most fundamental contribution lies …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

BYU Law Review

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 …

The Search For Unenumerated Fundamental Rights, Alina Sluzhyvenkova

Student Theses and Dissertations

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which …

Seizing Welfare From The Bankrupt, Michael D. Sousa

University of Cincinnati Law Review

The earned income tax credit (EITC) is currently the largest means-tested antipoverty program in the United States that assists low-income working families surviving along the edges of poverty. A central component of the national welfare system, the EITC has lifted millions of families with children out of poverty and has produced myriad benefits for their everyday lives. But most of the poor and near-poor endure in the low-wage labor market and often lead turbulent financial lives, plagued by precarious employment along with deleterious material and psychological constraints in budgeting for daily expenses. For the segment of these families also burdened …

Aid Or Abuse? A Review Of U.S. Police Assistance Programs In Latin America During The Early Cold War, Brianna Mcnally

War, Diplomacy, and Society (MA) Theses

During the Cold War, the United States used police assistance programs in under-developed countries to stop the spread of communism. Police aid aimed to improve a country’s economic stability and internal security to curb the rise of communist revolutions. The U.S. government charged the Office of Public Safety (OPS) within the U.S. Agency for International Development (USAID) with managing police assistance programs around the world, including in Asia, Africa, and Latin America.

Despite its seemingly good intentions, the OPS became a short-lived program now known today for its ties to human rights abuses, especially throughout Latin America. Several Latin American …

Life, Liberty, And The Pursuit Of Artificial Intelligence, Christopher C. Spinosa Jr.

Touro Law Review

With governmental use of artificial intelligence (“AI”) becoming more prevalent, Americans are at risk of being subjected to the factual and legal findings of ill-equipped AI systems. The possibility of an AI takeover of the judicial branch is an undesirable reality to some individuals who are challenging laws and government programs which utilize AI systems to enforce traffic code violations. This Article considers the procedural fairness, privacy rights, and effectiveness of the various uses of AI systems in traffic code enforcement. By undertaking a thorough review of New York case law, this Article also analyzes the treatment of AI systems …

Florida's Legislation Mandating Suspicionless Drug Testing Of Tanf Beneficiaries: The Constitutionality And Efficacy Of Implementing Drug Testing Requirements On The Welfare Population, Lindsey Lyle

Tennessee Journal of Law and Policy

No abstract provided.

Lawyers, Guns, And Marijuana: How N.Y. State Rifle And Pistol Ass'n V. Bruen Is Shaping Federal Marijuana Law, Mia Cordle

University of Cincinnati Law Review

No abstract provided.

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat M. Albrecht, Perry Moriearty

Northwestern University Law Review

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Best Practice Democratic Policing In Papua: Activating Development And Security Through Community Participation, Hery Herjawan, Bambang Shergi Laksmono, Robertus Robet, Muhammmad Luthfi, Vici Sofianna Putera

Masyarakat: Jurnal Sosiologi

The implementation of Democratic Policing across various parts of the world demonstrates the interconnectedness of changes in approaches to addressing security issues. This transformation is a result of a systemic shift from operational and managerial police systems. This research seeks to affirm this argument in the policing practices in Mimika, Papua, highlighting changes in the level of community participation in maintaining public safety and order driven by democratic policing practices in the region. This research employs a qualitative method for both data analysis and data collection. Data collection was conducted through interview techniques, meanwhile data analysis is conducted using case …

Office Of Attorney General: Peter F. Neronha, Attorney General: Access To Public Records Act ; Open Meetings Act (Powerpoint Presentation), Office Of The Attorney General Of Rhode Island, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Negotiating Police Reform, Cynthia Alkon

Faculty Scholarship

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different …

Authority With Procedural Justice: The Establishment And Enforcement Of Expectations Of Public Trust, Paris Desiree Eikanger Stoops

University Honors Theses

This thesis supposes all police officers should exercise authority with procedural justice, where implementation of nationwide procedural justice standards should explicitly prioritize establishing and enforcing expectations of public trust--justitia erga omnes. A qualitative temporal literary argument morally, ethically, socially, and democratically supported by a broad spectrum of criminal justice research, analyzed alongside traumatically racialized experiences, at the intersectionality of five administrations worth of sequent presidential crime policies and earth-shattering junctures in the lives of everyday Americans. Five brief companion analyses follow, exploring overlapping moral and ethical perspectives of dignity, respect, and fairness within contemporary policing in America.

Letter From The Editor, Reeve Lanigan

Pepperdine Dispute Resolution Law Journal

To foster dialogue and encourage community engagement surrounding these issues, this year The Pepperdine Dispute Resolution Law Journal (DRLJ) hosted its annual symposium in collaboration with the Straus Institute for Dispute Resolution and the Weinstein International Foundation to explore how elements of alternative dispute resolution can apply to community policing strategies to prevent and deescalate crime. The symposium, “The Tactics of Resolution: Exploring International Innovation in Law Enforcement and Conflict Resolution,” brought students, law enforcement officials, academics, and policymakers together to engage in enriching conversations on how to establish safer and more harmonious global community

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

We Cannot Police Systemic Racism And Systemic Poverty: Why Policing Is Not A Solution To Our Public Health Crisis, Semir Bulle

Utah Law Review

From drug addiction to issues with homelessness, the mental health crisis, community disputes, traffic violations and more, there does not seem to be any evidence that increased police budgets and spending are the best use of limited resources. Criminalization in substitution for measured and targeted interventions has not worked in structurally vulnerable and marginalized communities and it is far past the time to accept tangible alternatives, such as funding initiatives like TCCS. Instead of perpetually increasing our police budget, let’s instead invest in healing our communities. Let’s invest this money in education, recreation, childcare, housing, health; measures that are proven …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

Articles

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …