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The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

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 …

Forbidden Purposes: A New Path For Limiting Criminalization, Raff Donelson

Journal of Criminal Law and Criminology

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and remove them from public spaces. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, …

Sacred Victims: Fifty Years Of Data On Victim Race And Sex As Predictors Of Execution, Scott Phillips, Justin F. Marceau, Sam Kamin, Nicole King

Journal of Criminal Law and Criminology

In this essay, we update and expand David Baldus’s famous study of Georgia homicides in the 1970s to uncover the impact of the race and sex of homicide victims on whether a defendant was sentenced to death and ultimately executed. We show that the odds of a death sentence were sixteen times greater if the victim was a White woman than if the victim was a Black man, even when other factors that might explain the disparity were taken into account. Furthermore, we identified a clear hierarchy among victims with regard to whether a death sentence was ultimately carried out. …

Past, Prologue, And Constitutional Limits On Criminal Penalties, Maria Hawilo, Laura Nirider

Journal of Criminal Law and Criminology

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal constitution and by the constitution of the prosecuting state.

This is no less true for sentences than for prosecutions. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously proclaims that no American shall be subjected to …

Abolition Of What?, Christopher Lewis, Adaner Usmani

Journal of Criminal Law and Criminology

This Article defends a structural theory of the brutality of the carceral state. We argue that American penal systems are destined to be inhumane, barring sweeping changes to the social and economic order of the United States; and that prison and police abolition are neither sufficient nor necessary to bring these kinds of changes about.

This theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it is politically infeasible for capitalist democracies to permit the incentives to defy the law to exceed those to obey it. As we show, the Principle of Less …

Beyond Bars: Exploring Alternative Possibilities To Address Sexual And Gender Based Violence, Rachel Ensign Habliston

Journal of Criminal Law and Criminology

Many people agree that the United States carceral system is flawed. However, it can be difficult to discuss alternative ways to address violence that do not involve incarceration. Aside from the carceral system, there are other pathways to accountability and healing. Exploring these pathways for perpetrators of heinous crimes, such as sexual and gender-based violence (SGBV), is an overwhelming and under-reviewed endeavor. This Comment seeks to broaden perspectives about how society can hold people accountable for committing acts of SGBV by surveying progressive prosecution, restorative justice, and transformative justice as potential alternatives to the current carceral system. Part I provides …

Categorical Declinations & Democracy, Brenner M. Fissell

Journal of Criminal Law and Criminology

The most contentious action taken by reform prosecutors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate. Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides. How should we think about democracy and categorical declinations? The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray. In this essay, I hope to continue the work begun by Murray, offering additional insights …

Slapp Suits: An Encroachment On Human Rights Of A Global Proportion And What Can Be Done About It, Laura Lee Prather

Northwestern Journal of Human Rights

Freedom of expression is the underpinning of all other freedoms. Yet, increasingly, journalists, citizens, advocacy groups, whistleblowers, academics, and media organizations are being targeted and subjected to judicial harassment for informing the public about matters of public concern, denouncing authoritarian regimes, and exposing wrongdoing. These meritless lawsuits do not seek to right a wrong, but rather to silence and intimidate critics. They are known as “Strategic Lawsuits Against Public Participation” (“SLAPP” suits) and are on the rise globally. Because SLAPP suits are designed to inhibit ongoing investigations, stifle informed public debate, and prevent legitimate public interest reporting, they present a …

Toward A Multilevel Sociology Of Fraud, Brooke Harrington, Camilo Arturo Leslie

Northwestern University Law Review

This Essay applies a distinctively sociological multilevel analysis to fraud to provide novel insights and recommendations on an old problem. Rather than treating fraud as a problem of “criminogenic environments” or of individual psychologies and motivations, this multilevel analysis investigates the ways in which individuals (the micro level) interact with organizations (the meso level) and institutional systems (the macro level) to produce fraud. We illustrate these interactions and the insight that an interactive analysis can provide by using ethnographic data from an in-depth case study of the R. Allen Stanford offshore financial fraud. The case, which occurred in the Caribbean …

The Limits Of Wrongfulness: What Exactly Is Prohibited By Hobbs Act Extortion?, Duncan Weinstein

Northwestern Journal of Law & Social Policy

The Hobbs Act, 18 U.S.C. § 1951, prohibits, in interstate commerce, “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” This Note addresses what makes an act “wrongful.” First, this Note reviews the academic literature on what makes extortion morally and legally wrong and the Hobbs Act’s legislative history. Then, it argues that there are four distinct types of threats under the Hobbs Act: violent threats, litigation threats, reputational threats, and economic threats. Each of these threats are judged by distinct standards for wrongfulness, with two circuit splits …

Put Your Money Where Their Mouths Are: A Case For State-Based Investment In Anti-Shaming Policies For School Lunch Programs, Shayna Roth

Northwestern Journal of Law & Social Policy

Despite its goals for feeding hungry students, the federal government’s National School Lunch Program falls short due to a lack of guidance and resources. One consequence of these circumstances is shaming practices where schools use fear, punishment, and socioeconomic segregation tactics to mitigate meal price deficits. The federal government and several state governments attempt, and sometimes succeed, to enact legislation to improve school lunch programs, but efforts are few and far between. This Note draws on effective state laws to advocate for increased legislative action on school meals across all states, specifically addressing and prohibiting shaming practices. Eliminating this barrier …

Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison, Tom Butcher

Northwestern Journal of Law & Social Policy

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant …

Law Informs Code: A Legal Informatics Approach To Aligning Artificial Intelligence With Humans, John J. Nay

Northwestern Journal of Technology and Intellectual Property

Artificial Intelligence (AI) capabilities are rapidly advancing. Highly capable AI could cause radically different futures depending on how it is developed and deployed. We are unable to specify human goals and societal values in a way that reliably directs AI behavior. Specifying the desirability (value) of AI taking a particular action in a particular state of the world is unwieldy beyond a very limited set of state-action-values. The purpose of machine learning is to train on a subset of states and have the resulting agent generalize an ability to choose high value actions in unencountered circumstances. Inevitably, the function ascribing …

Consequences And The Supreme Court, Aaron Tang

Northwestern University Law Review

May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”

This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. …

White-Collar Crime, Sentencing Gender Disparities Post-Booker, And Implications For Criminal Sentencing, Sarah Turner

JCLC Online

“White-collar crime” is an amorphous term that has yet to be conclusively defined since its first use in 1939. This category of criminal activity results in what can be characterized as either economic harm or an impediment to the government’s ability to run successfully while minimizing conflicts of interest. Sentencing of white-collar crimes came into question in the late twentieth century due to a perception that white-collar offenders were receiving much lower sentences than offenders committing more traditional crimes. Additionally, the relationship between sentencing outcomes and status characteristics like race, age, citizen status, and gender were cause for concern. Different …

Toward A Socio-Legal Theory Of Male Rape, Orna Alyagon-Darr, Ruthy Lowenstein Lazar

Journal of Criminal Law and Criminology

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System, Thalia González

Journal of Criminal Law and Criminology

A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system—whether in policing practices or carceral settings—leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement coupled with new threats posed by COVID-19, advocates and academics have increasingly called for race-conscious public health-driven reforms to carcerality in the United States. Recognizing the significance of health to carceral reform, the initiation of a health justice grounded lexicon in criminal justice has opened the doorway to new …

Towards An Equitable Review Of Pre-Embryo And Divorce Disputes For Women, Lilah Kleban

Northwestern Journal of Law & Social Policy

Pre-embryos, procured through in-vitro fertilization (IVF), become a source of dispute when couples divorce or separate before using them. Particularly, couples may fight over who has decision-making power to use or not use the frozen pre-embryos for pregnancy. State courts across jurisdictions typically apply one of three categorical approaches: disposition contracts, contemporaneous mutual consent, or a balancing interests test. Each approach fails to provide courts with structures to fully evaluate each party’s interests at the time of dispute and account for inherent sex and gender differences that impact their stakes in the dispute. This Note proposes a modified balancing test …

Family | Home | School, Latoya Baldwin Clark

Northwestern University Law Review

The state grants residents who live within a school district’s border an ownership interest in that district’s schools. This interest includes the power to exclude nonresidents. To attend school in a school district, a child must prove that she lives at an in-district address and is a bona fide resident. But in highly-sought-after districts and schools, establishing a child’s bona fide residence may be highly contested.

In this Essay, I show that education law, policies, and practices fail to recognize a child’s residence when the child’s family and living situation do not comport with a particular ideal of family life. …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

The Missing U.S. Vat: Economic Inequality, American Fiscal Exceptionalism, And The Historical U.S. Resistance To National Consumption Taxes, Ajay K. Mehrotra

Northwestern University Law Review

Since the 1970s, economic inequality has soared dramatically across the globe and particularly in the United States. In that time, one of the obstacles of using fiscal policy to address inequality has been the growing myth of the “overtaxed American”—the misguided notion that U.S. taxpayers pay more in taxes than residents of other advanced, industrialized countries. This myth has persisted, in part, because of the peculiar and distinctive nature of the fractured American fiscal and social welfare state. Even a cursory review of comparative tax data shows that the United States, by most measures, is a low-tax country compared to …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

JCLC Online

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

Maximizing Social Welfare Through The Tailoring Of Patent Duration And Using Algorithms To Calculate Optimal Patent Duration, Alvaro Cure Dominguez

Northwestern Journal of Technology and Intellectual Property

Patents are legal devices granted by the government that confer inventors exclusive rights to their invention for a limited time. In exchange, the U.S. government requires the inventors to publicly disclose their invention to allow individuals to recreate it upon expiration of the exclusivity period. Previously, academics regarded patents as a necessary means to overcome the free-rider dilemma (“FRD”), and they assumed that, without patents, society would be deprived of many potentially valuable innovations. This model has come under criticism. Researchers point to cases where inventors would have innovated regardless of a patent grant. They also highlight instances where patent …

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

JCLC Online

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

The Disaster Chain: Counter-Mapping Global Value Chains, Peer Zumbansen

Northwestern Journal of International Law & Business

Abstract: Prevailing accounts by consultancies and logistics scholars present global value chains [GVCs] as an expression of contemporary international economic integration and connectivity. As such, they are considered crucial to the pursuit of economic growth and prosperity. At the same time, GVCs are deemed susceptible to “disruptions” through natural catastrophes, restrictive trade policies or pandemics. Left out of the standard narratives, even in light of the experience of the global Coronavirus pandemic, is the actual, as such disruptive impact of global value chain capitalism on human and natural lives. Dominant depictions of global value chain governance treat labor, environment and …

Theorizing Failed Prosecutions, Jon B. Gould, Victoria M. Smiegocki, Richard A. Leo

Journal of Criminal Law and Criminology

Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. However, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. In this Article, we take up an analysis of failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from …

U.S. Hate Crime Trends: What Disaggregation Of Three Decades Of Data Reveals About A Changing Threat And An Invisible Record, Brian Levin, James Nolan, Kiana Perst

Journal of Criminal Law and Criminology

When prejudice-related data are combined and analyzed over time, critical information is uncovered about overall trends, related intermittent spikes, and less common sharp inflectional shifts in aggression. These shifts impact social cohesion and grievously harm specific sub-groups when aggression escalates and is redirected or mainstreamed. These data, so critical to public policy formation, show that we are in such a historic inflection period now. Moreover, analysis of the latest, though partial Federal Bureau of Investigation hate crime data release, when overlaid with available data from excluded large jurisdictions, reveals hate crimes hit a record high in 2021 in the United …

The Conundrums Of Hate Crime Prevention, Shirin Sinnar

Journal of Criminal Law and Criminology

The recent surge in hate crimes alongside persistent concerns over policing and prisons has catalyzed new interest in hate crime prevention outside the criminal legal system. While policymakers, civil rights groups, and people in targeted communities internally disagree on the value of hate crime laws and law enforcement responses to hate crimes, they often converge in advocating measures that could prevent hate crimes from occurring in the first place. Those measures potentially include educational initiatives, conflict resolution programs, political reforms, social services, or other proactive efforts aimed at the root causes of hate crimes.

Focusing on the public conversation around …

Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert

Journal of Criminal Law and Criminology

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …