Digital Commons Network^™

Systematic 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 …

Assemblages And Actor Networks In The Borderlands - The Apposition Of Reproductive Rights Along The Mexican-American Border, Madeleine M. Plasencia

Articles

In 1971, Sarah Weddington argued Roe v. Wade as a class action on behalf of pregnant women living in Texas, many of whom, including herself had to flee the State to obtain an abortion in Mexico. In 2021, Texas enacted S. B. 8, otherwise known as the Texas Heartbeat Act, which created a private cause of action for injunctive relief and statutory damages awards against any person assisting in and any physician accused of performing an abortion, thus reigniting the cross-border flows that historically have made Mexico a haven for runaway enslaved people and pregnant persons heading south to freedom. …

Confronting Structural Inequality In State Labor Law, Andrew Elmore

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Low-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses …

A Critical Race Theory Analysis Of Critical Race Theory Bans, Caroline Mala Corbin

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A majority of state legislatures have introduced bills prohibiting public schools from teaching certain "divisive concepts" attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that …

The Price Of Criminal Law, Russell M. Gold

Articles

Should tax dollars pay for more criminal law, better public schools, or a new community center? Different counties will answer the question differently, but facing these tradeoffs is profoundly important to democratic governance. Nonetheless, because the criminal legal system diffuses power and hides and offioads costs, officials and voters do not have to honestly consider that question. These structural features place a hidden thumb on the scale that gives counties more criminal enforcement than they pay for. That is a problem. Too much enforcement is particularly pernicious in criminal law: Incarceration inflicts tremendous suffering, especially in poor communities of color. …

Consent Searches As Police Violence, David B. Owens

Articles

Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context …

Competency-Based Training Within The Prison System: Enhancing The Likelihood Of Entrepreneurial Activity Upon Release, Martina Brophy, Ana Pérez-Luño, Thomas M. Cooney

Articles

Recidivism rates across the world remain high, and one of the key reasons for this situation is that people leaving the prison system have great difficulty in securing employment. Addressing this issue must be explored from a broad perspective, but one potential career option that is under-explored is self-employment, with few entrepreneurship programmes available within prison systems. This study explores a competency-based approach to training, examining the knowledge, skills, and behaviours needed to enhance the prospects of persons with lived experience of prison becoming entrepreneurs. Using thematic analysis on ten in-depth interviews, this article identifies three categories of competency (generic,specific, …

Walking The Walk: Ex-Prisoners, Lived Experience, And The Delivery Of Restorative Justice, Allely Albert

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Although the role of prisoners and ex-prisoners has recently received significant attention in restorative justice research, the literature typically treats them as the ‘offending’ party within restorative justice processes. This article instead focuses on ex-prisoners as facilitators of restorative justice, highlighting their ability to lead such programmes. Using a case study from Northern Ireland, the article examines the way that experiences of incarceration have directly influenced practitioners’ skills and their ability to uphold restorative justice principles. It is contended that qualities developed and honed in the prison environment ultimately translate to unique characteristics that can improve the restorative process. As …

Island Musings: A Selective Bibliography Of Early Key West, Robin Schard

Articles

This bibliography identifes and describes 75 works that focus on Key West during its first 50 years (1821-71) as a U.S. possession. General, legal, and popular culture materials are included.

Public Defenders As Gatekeepers Of Freedom, Alma Magaña

Articles

Nearly half a million people are currently held in pretrial detention across the United States. Legal scholarship has explored many of the actors and factors contributing to the deprivation of freedom of those presumed innocent. And while the scholarship in these areas is rich, it has primarily focused on certain system actors—including judges, prosecutors, and profit-seeking sheriffs—structural concerns, such as the role race plays in who is being held in pretrial detention, or critiques of the failed promise of algorithms to deliver on bias-free bail determinations. But relatively little scholarship exists about the contributions of public defenders to this deprivation. …

“Social Workers By Day And Terrorists By Night?” Wounded Healers, Restorative Justice, And Ex-Prisoner Reentry, Allely Albert

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Common to many post-conflict societies, former political prisoners and combatants in Northern Ireland are often portrayed as security threats rather than as potential contributors to societal peacebuilding processes. This distrust limits their ability to contribute to the transitional landscape and additionally hinders desistance processes during their reentry from prison. Drawing from the work of Maruna, LeBel, and others on “wounded healers,” this article critically examines the restorative justice work of ex-prisoners who have become involved in leadership roles within community based restorative justice. It is argued that such practitioner work can help former combatants overcome many of the challenges typically …

Ireland’S Response To Domestic, Sexual And Gender-Based Violence: An Interview With Orla O’Connor, Deirdre Kelly

Articles

Orla O’Connor is the Director of the “National Women’s Council of Ireland” (NWCI), the leading national women’s membership organisation with over
190 member groups. She has held senior management roles in several non-governmental organisations for over 25 years. Time magazine recognised her as one of the 100 Most Influential People in 2019 for her role as Co-director of “Together for Yes”, the successful national civil society campaign that was influential in Ireland voting overwhelmingly in favour of removing the Eighth Amendment from the Constitution, a landmark referendum, which led to the legalisation of abortion in 2018. In addition to campaigning …

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

Articles

The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Articles

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …

Shades Of Justice: Racial Profiling Then And Now, F. Michael Higginbotham

Articles

It is not easy these days to talk about race in America, especially in a diverse group across racial lines. This is because people tend to feel strongly about these controversial issues, and when they disagree, they end up calling each other bad names, and that upsets their stomachs; then, they cannot enjoy the good food and drink that often accompany such events. So many simply choose not to attend, burying their heads in the sand. This Essay discusses several controversial aspects of the relevance of slavery law to issues of racial inequality today. Racial profiling has been a consistent …

Aesthetics Of Slavery & Slave Trade Crimes, Jocelyn Getgen Kestenbaum

Articles

In his insightful new book, Invisible Atrocities, Randle DeFalco examines the aesthetic biases of international criminal law (ICL). DeFalco astutely argues that ICL prioritizes punishing "horrific spectacles" of violence while ignoring less visible, attritive forms of violence that cause similar levels of harm and suffering, generally over longer periods of time. While ICL is selective in its preference for "horrific spectacles," even the spectacular violence has been rendered invisible in ICL when inconvenient factual evidence counters dominant narratives in international law.

One such dominant narrative is the successful abolition of slavery and the slave trade of the nineteenth and twentieth …

Reflections On Fees And Fines As Stategraft, Rebekah Diller, Mitali Nagrecha, Alicia Bannon

Articles

In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices …

Carceral Socialization As Voter Suppression, Danieli Evans

Articles

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples' sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

Antimatters: The Curious Case Of Confederate Monuments, Jeremiah Chin

Articles

Confederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

Articles

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

Stories That Kill: Masculinity And Capital Prosecutors' Closing Arguments, Pamela A. Wilkins

Articles

The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite—or perhaps because of—the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern …

The January 6 Insurrection And The Problem Of Constitutional Guardianship, Aziz Huq

Articles

No abstract provided.

A Symposium To Mark The Publication, By New York University Press, Of Ian O’Donnell’S Prison Life: Pain, Resistance, And Purpose, Rosemary Gido, Derek S. Jeffreys, Cormac Behan, Kimmett Edgar, Bethany E. Schmidt, Gorazd Mesko, Mary K. Stohr, Ashley T. Rubin

Articles

Recognizing the major scholarly contributions to criminology by the noted Irish criminologist, Ian O’Donnell, The Prison Journal invited seven contemporary corrections and punishment scholars to offer insights into O’Donnell’s new book, Prison Life: Pain, Resistance, and Purpose. Offering contextually rich descriptions of prisoner life, the text features four case study prisons—H Blocks, Northern Ireland; Eastham Unit, Texas; Isir Bet, Ethiopia; and ADX Florence, Colorado, in pivotal time periods and through an individual's custodial career in each institution. The symposium discussants focus on O’Donnell's conceptual framework—the degree of prison integration, system and staff regulation, and legitimacy—and how these reflect the key …

Democracy's Other Boundary Problem: The Law Of Democratic Disqualification, Tom Ginsburg, Aziz Huq, David Landau

Articles

Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer both a positive account of the function that disqualification plays in constitutional ordering …

Doing Injustice: Exchanging One “Arbitrary, Cruel, And Reckless” Sentencing System For Another, Michael Tonry

Articles

Marvin Frankel’s characterization of American sentencing in Criminal Sentences: Law Without Order remarkably successfully distilled ideas that were in the air and emerging. His main proposals—a sentencing commission, sentencing rules, requirements that judges explain their decisions, and meaningful appellate sentence review—would in a better America go a long way toward establishing the kind of rational, humane, and just process he imagined. Despite some early, partial successes, however, Frankel’s proposals remain largely untested. In retrospect, he underestimated, misunderstood, or chose to ignore formidable political impediments to serious sentencing reform in late twentieth century America. He also largely ignored two intractable problems, …

The Blue Family Constitution, June Carbone

Articles

No abstract provided.

The Partial Success Of Judge Frankel’S Sentencing Commission, Fifty Years On, Richard Frase

Articles

Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story …

Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan

Articles

Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, …

Appointed Or Elected: How Justices On Elected State Supreme Courts Are Actually Selected, Herbert M. Kritzer

Articles

During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection.

The Court’S Morality Play: The Punishment Lens, Sex, And Abortion, June Carbone, Naomi Cahn

Articles

This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.

This Article is unique in discussing …