Digital Commons Network^™

On Power & Indian Country, Maggie Blackhawk

Faculty Articles

An invited essay by the Stanford Law Review on the author's experience as a woman in the legal profession for a volume published collectively by the top sixteen law reviews.

Stepping Up To The Challenge Of Leadership On Race, Anthony C. Thompson

Faculty Articles

This speech was delivered on November 8, 2019, at the Association of the Bar of the City of New York, as a part of a symposium entitled “Leading Differently Across Difference: A National Conference on Training Lawyers as Leaders” hosted by the Maurice A. Deane School of Law at Hofstra University and the school’s Freedman Institute.

Exile From Main Street, Deborah N. Archer

Faculty Articles

There is a growing web of policing-based housing policies that prohibit people who have had contact with the criminal legal system from living in public, subsidized, or private rental housing. This web of restrictions is consistent with America’s broader embrace of exile in response to perceived threats and is rapidly expanding against a backdrop of mass criminalization. While individual policing-based housing policies have received some scholarly attention, little has been written about their cumulative impact and the central role that mass criminalization plays in locking people out of housing. When the full array of restrictions on public and private housing …

Prisoners Of Politics: Breaking The Cycle Of Mass Incarceration, Rachel E. Barkow

Faculty Articles

Minnesota Law Review Symposium Keynote November 18, 2019

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer H. Arlen, Samuel W. Buell

Faculty Articles

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of …

Black Markets And The Exchange Structure, Richard R. W. Brooks

Faculty Articles

Laws do not prevent crime. They create it. Volitional acts causing harm to persons and their interests of course occur with and without law (though presumably more often without) but to see these actions as criminal, to identify them properly as such, is possible only through law. So stated, the point is rather bromidic, and yet it does hint at a more profound question. Why make any conduct criminal? Answers to this question would appear obvious and overdetermined, at least, for some conduct. Victims of assaults, thefts, and other gross invasions of their persons and property needn’t testify as to …

Critical Topics Concerning Police And Policing—Panel Discussion From Fourth National People Of Color Legal Scholarship Conference, Hosted At The American University Washington College Of Law, Michael Banerjee, Michael Z. Green, Alexis Karteron, Ji Seon Song

Faculty Articles

Panel discussion at the 4th National People of Color Legal Scholarship Conference: People of Color and the Future of Democracy, March 21 - 24, 2019, American University Washington College of Law, Washington, D.C.

The Prisoner Trade, Emma Kaufman

Faculty Articles

It is tempting to assume that the United States has fifty distinct state prison systems. For a time, that assumption was correct. In the late twentieth century, however, states began to swap prisoners and to outsource punishment to their neighbors. Today, prisoners have no right to be incarcerated in the state where they were convicted, and prison officials may trade prisoners — either for money or for other prisoners — across state lines. Interstate prison transfers raise questions about the scope of states’ authority to punish, the purpose of criminal law, and the possibilities of prison reform. Yet apart from …

Was Helping China Build Its Post-1978 Legal System A Mistake?, Jerome A. Cohen

Faculty Articles

Some thoughtful observers argue that the American policy of cooperation with post-Mao China in developing its legal system has proved a failure. They claim that our engagement set out to produce a democratic, “rule of law” China, but instead enabled a Communist dictatorship to become increasingly repressive at home and a threat to both world peace and the values we cherish. At the same time, America’s post-1978 legal cooperation with China has come under attack on the grounds that we carried it out in the wrong way–that our legal efforts in China reflected a growing and misguided faith in the …

Hail To Ocu Law School’S Intrepid Helmsman In China!, Jerome A. Cohen

Faculty Articles

Dean Larry Hellman contacted me when we were both in Beijing in December 2007. Larry was new to China; I was literally an old hand. He was seeking my counsel regarding his early efforts to establish relationships between Oklahoma City University School of Law and Chinese law schools and legal institutions. Always eager to encourage such relationships, I arranged for us to meet over tea at my hotel. Larry wanted my opinion of the soundness of the programs he had put in place and his plans to build on them to establish for OCU’s law school a strong presence in …

Partisan Voting On The California Supreme Court, Mark P. Gergen, David A. Carrillo, Benjamin M. Chen, Kevin M. Quinn

Faculty Articles

When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (IRT) model to identify voting patterns in non-unanimous decisions by California Supreme Court justices from 1910 to 2011. The model shows that voting on the court became polarized on recognizably partisan lines beginning in the mid-1900s. Justices usually did not vote in a pattern that matched their political reputations and party affiliation during the first half of the century. This began to change in the 1950s. After 1959 the dominant voting pattern is partisan and closely …

Evidentiary Irony And The Incomplete Rule Of Completeness: A Proposal To Amend Federal Rule Of Evidence 106, Daniel J. Capra, Liesa L. Richter

Faculty Articles

In recent years, there have been many calls and suggestions for a more equitable criminal justice system. Although sometimes overlooked in that dialogue, the fair operation of the Federal Rules of Evidence is a crucial component in ensuring such an equitable system. Unfortunately, the interpretation of Federal Rule of Evidence 106 in some jurisdictions permits unjust results, particularly for criminal defendants seeking to rely upon the Rule. Rule 106, also known as the “rule of completeness,” is premised upon notions of fundamental fairness and ostensibly permits a party to force its adversary to introduce the remainder of a written or …

Covid, Crisis, And Courts, Colleen Shanahan, Alyx Mark, Jessica Steinberg, Anna Carpenter

Faculty Articles

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of …

#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman

Faculty Articles

Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are …

Characterizing Participation And Perceived Engagement Benefits In An Integrated Digital Behavioral Health Recovery Community For Women: A Cross-Sectional Survey, Brenda Curtis, Brandon Bergman, Austin Brown, Jessica Mcdaniel

Faculty Articles

Background: Research suggests that digital recovery support services (D-RSSs) may help support individual recovery and augment the availability of in-person supports. Previous studies highlight the use of D-RSSs in supporting individuals in recovery from substance use but have yet to examine the use of D-RSSs in supporting a combination of behavioral health disorders, including substance use, mental health, and trauma. Similarly, few studies on D-RSSs have evaluated gender-specific supports or integrated communities, which may be helpful to women and individuals recovering from behavioral health disorders. Objective: The goal of this study was to evaluate the SHE RECOVERS (SR) recovery community, …

Confronting The Twenty-First-Century Marian Examination, Lauren Mclane

Faculty Articles

Today forensic evidence has increasingly become a key and powerful witness against the accused in criminal trials In the Sixth Amendment Confrontation Clause our Framers meant to create a safeguard that would forever test the reliability of evidence introduced against a defendant As Justice Scalia reminded us in Crawford v Washington ÔÇ£To be sure the Clause's ultimate goal is to ensure reliability of evidence but it is a procedural rather than a substantive guarantee It commands not that evidence be reliable but that reliability be assessed in a particular manner by testing in the crucible of crossexaminationÔÇØ Nonetheless courts across …

#Notme: A Commonwealth For Mankind, Deirdre M. Bowen

Faculty Articles

No abstract provided.

Three Lessons For Criminal Law Reformers From Locking Up Our Own, Rachel E. Barkow

Faculty Articles

James Forman Jr.’s Locking Up Our Own is that rare nonfiction work that is a page turner even when you know the ending. That is the product of exceptional writing, meticulous historical research, and the deep empathy of the author that gives the book its voice throughout. That is why it was both a worthy recipient the Pulitzer Prize and a feature on The Daily Show with Trevor Noah. It is as insightful as it is entertaining, and if you do not already own a copy, you should. In my commentary, I want to highlight three key arguments from Forman’s …

The "Murder Scene Exception"—Myth Or Reality? Empirically Testing The Influence Of Crime Severity In Federal Search-And-Seizure Cases, Jeffrey A. Segal, Avani Mehta Sood, Benjamin Woodson

Faculty Articles

Prior experimental studies suggest that judges are susceptible to cognitive biases when making legal decisions, such as being motivated by the legally irrelevant nature of a defendant’s crime when determining the admissibility of challenged evidence. However, that research has been constrained to hypothetical cases, limiting the real-world conclusions that can be drawn from it. Addressing this empirical gap, we offer a novel observational analysis that tests the influence of crime severity on suppression outcomes in actual search-and-seizure cases from U.S. Courts of Appeals. Using legislative criminal penalties to measure crime severity, our analysis shows that as crime severity increases, judges …

Attempted Justice: Misunderstanding And Bias In Psychological Constructions Of Criminal Attempt, Avani Mehta Sood

Faculty Articles

How do jurors construe and apply facts and law to decide the point at which a defendant’s thoughts and actions cross the line from being legally innocent to criminal? And under what doctrinal circumstances are such lay constructions of criminality vulnerable to legal misunderstanding and bias? Although these are high-stakes questions, the black box of the jury room leaves the legal system largely in the dark about the answers. Shining an empirical light on this domain, this Article employs tools of psychology to investigate how lay decisionmakers construe and apply legal standards for criminal attempt—a doctrine that imposes liability when …

Memoir As Witness To Mental Illness, Dora W. Klein

Faculty Articles

During a trial, a witness's job is to supply the facts by telling the jury what she saw, heard, or otherwise experienced that is relevant to the legal questions the jury must answer. The jury's job is to decide how much weight and credibility to accord a witness's testimony. Jurors are expected, even instructed, to rely on their own knowledge about the world when deciding whether and how much to believe a witness. Most of the time, jurors' own experiences are sufficient to allow them to accurately assess a witness's testimony. However, jurors are sometimes called upon to assess testimony …

Mdl Immunity: Lessons From The National Prescription Opiate Litigation, Roger Michalski

Faculty Articles

Federal multi-district litigation (“MDL”) suffers from a massive blind spot that has largely escaped notice: it only selects cases based on “convenience,” “efficiency,” and the preservation of judicial resources. The statute does not take into account broader societal and governmental interests that can trump litigation efficiency arguments. One way to fix this blind spot is through the new concept of MDL immunity (a procedural rather than liability immunity). This doctrinal innovation would exempt cases by and against government entities from generalized MDL treatment. I make the doctrinal argument for MDL immunity informed by original data collected from hundreds of cases …

Should Robots Prosecute And Defend?, Stephen E. Henderson

Faculty Articles

Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. And even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision—by judge …

It's Complicated: The Challenge Of Prosecuting Tncs For Criminal Activity Under International Law, Jena Martin

Faculty Articles

Like it or not, Transnational Corporations (TNCs) are taking an increasingly active role in larger societal issues and debates. Whether it's a social advocacy campaign that seeks to reduce violence and bullying, a decision by a pharmacy company to stop selling tobacco products, or a sportswear company's decisions to take a stand in solidarity with an advocate's resistance to police brutality, TNCs are becoming increasingly vocal regarding their role in larger societal issues.

But there is a darker side to the increased intermingling between corporations and the larger societal impact; namely the potential for a corporation to be involved, or …

The New Housing Segregation: The Jim Crow Effects Of Crime-Free Housing Ordinances, Deborah N. Archer

Faculty Articles

America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long since overturned and beyond the reach of current legal process. But this is not true. On the contrary, the law continues …

Ai Systems As State Actors, Kate Crawford, Jason M. Schultz

Faculty Articles

Many legal scholars have explored how courts can apply legal doctrines, such as procedural due process and equal protection, directly to government actors when those actors deploy artificial intelligence (AI) systems. But very little attention has been given to how courts should hold private vendors of these technologies accountable when the government uses their AI tools in ways that violate the law. This is a concerning gap, given that governments are turning to third-party vendors with increasing frequency to provide the algorithmic architectures for public services, including welfare benefits and criminal risk assessments. As such, when challenged, many state governments …

Consequential Sex: #Metoo, Masterpiece Cakeshop, And Private Sexual Regulation, Melissa Murray

Faculty Articles

The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses …

Democratic Policing Before The Due Process Revolution, Sarah A. Seo

Faculty Articles

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Segregation By Citizenship, Emma Kaufman

Faculty Articles

For centuries, prisoners in the United States were housed together regardless of their citizenship status. That changed in 1999 when the federal government began to send noncitizens into separate prisons. Today, tens of thousands of people — more than half of all noncitizens in federal prison — live in an institution segregated by citizenship. The vast majority of these people are Mexican nationals. Nearly all of them are Latino. The rise of the all-foreign prison raises pressing questions about federal immigration power and noncitizens’ equal protection rights. Yet no legal scholarship examines these unusual institutions. Few even know they exist. …

Categorical Mistakes: The Flawed Framework Of The Armed Career Criminal Act And Mandatory Minimum Sentencing, Rachel E. Barkow

Faculty Articles

The Court’s current approach to the ACCA, the categorical approach, makes the best of a bad situation in a manner that is consistent with the Constitution’s requirements. Interpreting the ACCA as narrowly as possible and robustly enforcing the rule of lenity should be the Court’s other touchstones in this area in light of the harsh consequences the ACCA imposes and the vast discretion it gives prosecutors. But ultimately there is only so much the Court can do. It is up to Congress to fix its mistakes and, until it does, we can expect to see more ACCA cases on the …