Digital Commons Network^™

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

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No abstract provided.

Banks, Marijuana, And Federalism Symposium: Marijuana, Federal Power, And The States, Julie Andersen Hill

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Although marijuana is illegal under federal law, twenty-three states have legalized some marijuana use. The state-legal marijuana industry is flourishing, but marijuana-related businesses report diffi- culty accessing banking services. Because financial institutions will not allow marijuana-related businesses to open accounts, the mari- juana industry largely operates on a cash-only basis-a situation that attracts thieves and tax cheats. This Article explores the root of the marijuana banking problem as well as possible solutions. It explains that although the United States' dual banking system comprises both federal- and state- chartered institutions, when it comes to marijuana banking, federal regulation is pervasive and …

Alabama's Mirror: The People's Crusade For Civil Rights Introduction, Steven H. Hobbs

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No abstract provided.

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

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This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Hands Off Our Fingerprints: State, Local, Andindividual Defiance Of Federal Immigrationenforcement, Christine N. Cimini

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Secure Communities, though little-known outside law-enforcement circles, is one of the most powerful of the federal government’s immigration enforcement programs. Under Secure Communities, fingerprints collected by state and local law enforcement and provided to the Federal Bureau of Investigation for criminal background checks are automatically shared with the Department of Homeland Security, which checks the fingerprints against its immigration database. In the event of a match, an immigration detainer can be issued and an individual held after they would otherwise be entitled to release. Originally designed as a voluntary program in which local governments could choose to participate, the Department …

Racial Profiling As Collective Definition, Trevor G. Gardner

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Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice.

However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In this article, I review the literature on group distinction to …

Why The Buffett-Gates Giving Pledge Requires Limitation Of The Estate Tax Charitable Deduction, Edward A. Zelinsky

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The Buffett-Gates Giving Pledge, under which wealthy individuals promise to leave a majority of their assets to charity, is an admirable effort to encourage philanthropy. However, the Pledge requires us to confront the paradox that the federal estate tax charitable deduction is unlimited while the federal income tax charitable deduction is capped. If a Giving Pledger leaves his wealth to charity, the federal fisc loses significant revenue since the Pledger thereby avoids federal estate taxation as charitable bequests are deductible without limit for federal estate tax purposes. Despite its laudable qualities, the Giving Pledge is a systematic (albeit inadvertent) threat …

Using A Human Rights Approach In Immigration Advocacy: An Introduction, Rebecca Sharpless, Robert Pauw, Judith L. Wood

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No abstract provided.

"Public ... Since Time Immemorial": The Labor History Of Hague V. Cio, Kenneth M. Casebeer

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No abstract provided.

Exempt Entities As Government Contractors: Regulation Through Cooperative Federalism, Frances R. Hill

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No abstract provided.

Policing Immigration, Thomas J. Miles, Adam B. Cox

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No abstract provided.

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

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No abstract provided.

Building A Strong Foundation: Justice John Simonett And Constitutional Law In Minnesota, Robert Stein

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I am delighted to join in this Tribute to the remarkable judicial career of Minnesota Supreme Court Justice John E. Simonett—a great justice and, equally important, a great human being. I remember Justice Simonett with deep respect and affection. During my years as dean of the University of Minnesota Law School, I could always count on Justice Simonett to enliven any program with his erudite and pithy remarks, his wit, and his joyful presence. I remember particularly a Judges in Residence program in which Justice Simonett and Justice Anthony Kennedy of the Supreme Court of the United States were the …

Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain

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International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. In this paper, I draw on the insights of comparative law and methodology to propose a new doctrine of perpetration that reflects the role and function of high level participants in mass atrocity while …

Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld

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The Supreme Court in Roper v. Simmons 1 prohibited states from executing offenders for murders committed when younger than eighteen years of age. Roper found a national consensus existed against executing adolescents based on state statutes and jury practices. 2 The Justices also conducted an independent proportionality analysis and concluded that youths' immature judgment, susceptibility to negative peer influences, and transitory personality development reduced their culpability and precluded the most severe sentence. 3

The Tools Of Political Dissent: A First Amendment Guide To Fun Registries, Thomas E. Kadri

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No abstract provided.

On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr

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With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams' article, The Impriasoner's Dilemma: A Cost-Benefit Approach to Incarceration,' makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams' piece and discuss the possible case that could be made for incorporating formal cost-benefit …

Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger

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For this Introduction, I undertake to look a bit more broadly at recent data. The best sources of demographic information about prisoners are the various surveys and censuses conducted by the U.S. Department of Justice Bureau of Justice Statistics (BJS). While no BJS publication directly addresses the issue, and no BJS dataset allows its full analysis, it is possible to glean something from the most recent BJS prison census, the 2005 Census of State and Federal Adult Correctional Facilities.

Four Reforms For The Twenty-First Century, Barry C. Scheck

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What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. Ass the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.

Do The Mentally Ill Have A Right To Bear Arms, Fredrick E. Vars, Amanda Adcock Young

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No abstract provided.

Symptom-Based Gun Control Symposium Article, Fredrick E. Vars

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No abstract provided.

Imagining A Same-Sex Marriage Decision Based On Dignity: Considering Human Experience In Constitutional Law, Danieli Evans

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California’s Proposition 8 allows same sex couples to join through civil unions, which grant the legal benefits afforded to married couples but denies them the official label of “marriage.” The lower court eschewed the question of whether Proposition 8 burdens any fundamental right by concluding there is not even a rational basis (the minimum standard for the constitutionality of any law) for this law, as its sole effect is to deny same sex couples the designation of marriage.

We appreciate the lower court’s caution not to extend our fundamentalrights jurisprudence beyond precedent. However, we are positioned to elaborate fundamental constitutional …

Powerless Against Police Brutality: Felon’S Story, Tamara F. Lawson

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Imagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. Next, envision recovering from these injuries and awakening from a coma chained to your hospital bed informed that you are under arrest for attempted murder of a police officer. Then, consider waiting over five years for the opportunity to tell your story to the court, believing justice will be served, but instead you discover that the trial is more influenced by the revelation of your prior criminal record than …

Lockdown For Liberty: Black Masculinities, Mass Incarceration And Labor In The Georgia Prisoners Strike, Jeremiah Chin

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This article examines the Georgia prisoners’ protest and uses the prisoners’ list of demands to examine the relationship between historical and present notions of race, labor, rights and incarceration. Particular focus will be placed on how mass incarceration is racialized in the disproportionate imprisonment of men of color, specifically black men, and how this contributes to the invisibility of this population in the public eye. The next section offers a theoretical framework to understand how prisons and prisoner issues are removed from public discourse, the general assumptions undergirding public perceptions of prisons and how common sense assumptions of prisons can …

Value Divergence In Global Intellectual Property Law, J. Janewa Osei-Tutu

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It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

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Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

Proportionality And Parole, Richard A. Bierschbach

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Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …

Proportionality And Parole, Richard A. Bierschbach

Articles

Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …

Rluipa Is A Bridge Too Far: Inconvenience Is Not Discrimination, Marci A. Hamilton

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No abstract provided.

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

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In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …