Digital Commons Network^™

Subordinate Prosecutors’ Independence, Bruce A. Green, Jessica A. Roth

Articles

This essay is about subordinate prosecutors’ independence to do what they think constitutes “seeking justice” when they perceive that their boss, or their boss’s boss, wants them to do something that is unjust—not illegal, but unjust. Of course, if subordinate prosecutors want to do either what they are told to do or what they infer that a higher-up wants them to do, they can do so, as long as the conduct is legal. Subordinate prosecutors might choose to disregard their own professional judgment of what justice requires because they share their boss’s objectives, because they see conforming as a route …

Keynote: Promoting Disability Equality Behind Bars, Margo Schlanger

Articles

A few years back, I finished a five-year appointment as a “settlement monitor” in a state prison system for a civil rights case about deaf and hard-of hearing people incarcerated there. With the consent of the parties, I had been appointed by a federal court to spend time in the state’s prisons, talking to prisoners and staff, and reviewing records and facilities. I saw some obvious problems. I recall one deaf prisoner; he used American Sign Language to communicate and could not speak at all. He was found to have committed a disciplinary infraction at a proceeding where he could …

Outside The Walls: Communities Coming Together, Pamela Bucy Pierson, Tobie J. Smith

Articles

No abstract provided.

Curb Their Enthusiasm: Controlling The Discretion Of Creative Prosecutors, Scott Schumacher

Articles

On January 6, 2021, a mob of supporters of then-president Donald Trump stormed the U.S. Capitol Building to disrupt the certification by Congress of the presidential election. Joseph Fischer was a member of that mob, and he was one of the individuals who forced his way into the Capitol Building. He was charged with multiple criminal counts, including obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c) for allegedly attempting to delay Congress’ election certification. In Fischer v. United States, the United States Supreme Court reversed the obstruction charge, holding that section 1512(c) did not apply to …

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

Colonizing By Contract, Emmanuel H. Arnaud

Articles

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

Articles

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)-including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds-in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …

Systemic Regulation Of Artificial Intelligence, Yonathan Arbel, Matthew Tokson, Albert Lin

Articles

Today's artificial intelligence ("AI") systems exhibit increasing capabilities across a remarkable variety of tasks. The rapid growth in AI ability has caught the attention of policymakers, parliaments, and the United Nations. These entities are increasingly looking towards regulating AI, not only in its particular applications, but as a technology. Yet legal scholarship has thus far offered little to this new and critical regulatory conversation, which has instead been dominated by computer scientists and technologists.

This Article begins the project of assessing AI's broader risks and law's role in addressing them. These risks are wide ranging -they span harms to vulnerable …

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

Articles

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

Redistributing Justice, Benjamin Levin, Kate Levine

Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

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 …

Integrating Human Rights In Domestic Clinical Practice, Tamar Ezer, Elizabeth Brundige, Aya Fujimura-Fanselow, Ryan Thoreson

Articles

Given that the human rights framework contains a rich and evolving body of norms and standards, integrating human rights law into clinical teaching provides new avenues to approach problem-solving. A human rights framework offers additional sources to ground moral and legal claims, as well as new strategies and advocacy targets. These alternatives work to foster creativity and lawyering skills, particularly in areas where domestic law is limited or constraining. Moreover, U.S. advocates have much to learn from global human rights struggles and advocacy efforts and can benefit from engaging in human rights discourse and practice. This article introduces readers to …

Planning Report For The University Of Washington Center On Intimate Partner Violence Research, Policy And Practice, Mary A. Kernic, Avanti Adhia, Anna E. Bender, Natalie Dolci, Alice M. Ellyson, Mary Fan, V. Kalei Kanuha, Jennifer Piel, Dana Raigrodski, Ali Rowhani-Rahbar, Kiana Swearingen, Denise Walker, Carolyn West

Articles

This report is respectfully submitted to fulfill the legislative mandate pursuant to Section 602 of Engrossed Second Substitute House Bill 1715 (2023) to generate a plan for the establishment of a University of Washington (UW) center on intimate partner violence (IPV) research, policy and practice. The goals of the center are to conduct IPV research, widely disseminate evidence-based and other high quality research to best inform policy and practice-based efforts in IPV prevention and harm reduction, and to ensure these efforts are informed and responsive to the needs of survivors and others impacted by IPV in Washington State.

Administrative Enslavement, Adam Davidson

Articles

No abstract provided.

Tailwiz: Empowering Domain Experts With Easy-To-Use, Task-Specific Natural Language Processing Models, Austin Peters, Tim Daj, Jonah Gelbach, David Freeman, Daniel Khang

Articles

Experts outside the field of machine learning (ML) are interested in using ML techniques to analyze their textual data, but they are inhibited by a lack of convenient natural language processing (NLP) tools. To address this issue, we present tailwiz, an easy-to-use Python tool, powered by supervised fine-tuning of NLP models. tailwiz caters to domain experts by abstracting away technical ML knowledge and running conveniently on personal computers, the preferred mode of computation among domain experts. We show that tailwiz outperforms domain experts’ current textual analysis techniques on a majority of real-world tasks, up to a 384.8% F1 increase (46.18% …

The Role (And Limits) Of Developmental Neuroscience In Determining Adolescents’ Autonomy Rights: The Case For Reproductive And Voting Rights, Emily Buss, Julie Maslowsky, Laura Wray-Lake

Articles

No abstract provided.

The Magnet School Wars And The Future Of Colorblindness, Sonja Starr

Articles

The Supreme Court’s recent decision striking down the use of race-based classifications in university admissions reflects its growing commitment to the concept of “colorblindness,” which has implications well beyond education. In anticipation, many schools and other actors are already moving toward alternative, facially race-neutral strategies for promoting diversity and reducing racial disparity. But what will happen when those policies too are challenged because they have race-related motives? Will courts soon find all race-conscious policymaking unlawful based on its ends? This is the next stage of the legal battle over colorblindness, and it is already underway.

The first wave of this …

The Shadow Of The Law Of The Police, Adam Davidson

Articles

No abstract provided.

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Articles

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Just Don’T Do It: Why Cannabis Regulations Are The Reason Cannabis Businesses Are Failing, Edward Adams

Articles

Part I will provide a historical overview of the cannabis plant and our country’s experience with it prior to the election of President Richard Nixon. It is at that point, the early 1970s, that the current federal cannabis scheme began to take shape. Sections I.A though I.C will discuss the inception of the War on Drugs during the Nixon Administration and examine the subsequent social movement that led President Reagan to revamp and expand the War on Drugs throughout the 1980s.

The legal framework for federal cannabis regulation has largely remained stagnant since the Reagan Administration. Nevertheless, the federal stance …

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

Articles

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 …

When An Indicted Candidate Wins The Presidency: What Happens To The Trials If Donald Trump Wins The Election?, Richard Painter, Claire Finkelstein

Articles

For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department …

The Three-Verdict Problem, Jack Whiteley

Articles

!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that …

Why Mass Incarceration Is Uniquely American, Michael Tonry

Articles

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

The New Outlawry, Darrell Miller, Jacob Charles

Articles

From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self- protection and the ostensible maintenance of law and order. Yet such significant authority for private violence, and the values it projects, can have tragic real-world consequences, especially for marginalized communities and people of color.

We argue that these expansions of private violence tap into an ancient form of social control—outlawry: the removal of …

The Consequences And Constitutionality Of Training Police To Blame Victims, Richard Mcadams, Margareth Etienne

Articles

No abstract provided.

Machine-Learning Human Rights, Han-Wei Ho, Patrick Chung-Chia, Nuno Garoupa, Martin Wells, Yun-Chien Chang, Tom Ginsburg

Articles

Utilizing a comprehensive panel dataset spanning from 1900 to 2020, this study introduces an innovative methodology for the analysis and categorization of legal documents, specifically national constitutions. Contrary to the predominant reliance on unsupervised methods within the field, this research incorporates a supervised machine-learning approach, notably the SEMMS method, alongside traditional unsupervised algorithms. This dual approach facilitates a nuanced analysis of the human rights provisions contained within national constitutions, resulting in the identification of both traditional and novel constitutional groupings. Broadly speaking, the more traditional common law-civil law divide does not seem particularly relevant in this context. Furthermore, our methodology …

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

Articles

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 …