Digital Commons Network^™

The Black Police: Policing Our Own, Devon W. Carbado, L. Song Richardson

Faculty Articles

The problem of police violence against African Americans is a salient feature of nationwide discussions about race. Separate from whether racialized policing against African Americans is, in fact, a social phenomenon, is the contestable question about solutions: Assuming that African Americans are indeed the victims of overpolicing, what can we do about it? The answers range from abolishing police officers altogether, to training them, to diversifying police departments. We focus on the diversification of police departments in this essay. Drawing on empirical, historical, and theoretical literatures, we examine how, if at all, black police officers’ race might shape how they …

Issue Preclusion In Employment Arbitration After Epic Systems V. Lewis, Samuel Estreicher, Lukasz Swiderski

Faculty Articles

The Supreme Court’s 5-4 ruling in Epic Systems v. Lewis (2018) that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act’s protection of “concerted activity” by employees may prompt further adoption of class action waivers in arbitration agreements. We consider in this article the prospect of greater use of offensive non-mutual issue preclusion (sometimes termed collateral estoppel) in employment arbitration as an alternative means of minimizing duplicative or inconsistent treatment of employment claims in arbitration. Focusing on confidentiality provisions and preclusion waivers as two obstacles to greater use of estoppel principles in arbitration, we …

Administrative Constitutionalism In Immigration Law, Alina Das

Faculty Articles

The direct application of constitutional norms in immigration law has long been stymied by unique doctrinal and institutional barriers. Scholarship has focused on the role that federal courts may play in indirectly advancing constitutional norms through statutory interpretation and the use of subconstitutional norms in immigration cases. Despite the limited role of federal courts vis-à-vis the administrative state in the shaping of immigration law, less attention has been paid to the role of the executive branch in this arena. This Article addresses and critiques the current state of administrative constitutionalism in immigration law. As this Article describes, the executive branch …

Arrested Development: Rethinking Fourth Amendment Standards For Seizures And Uses Of Force In Schools, Alexis Karteron

Faculty Articles

Fourth Amendment standards regarding seizures and uses of force against juveniles in schools require a critical reassessment. Although jurists and scholars have paid it scant attention, this branch of Fourth Amendment doctrine offers a valuable lens for understanding the school-to-prison pipeline and the power of law enforcement officers to detain, handcuff, and use force against schoolchildren. While the Supreme Court has announced principles regarding the Fourth Amendment in schools generally, it has never addressed this issue directly. This Article explores empirical findings on the role of law enforcement in schools and the unique characteristics of juveniles that should impact Fourth …

Career Motivations Of State Prosecutors, Ronald F. Wright, Kay L. Levine

Faculty Articles

Because state prosecutors in the United States typically work in local offices, reformers often surmise that greater coordination within and among those offices will promote sound prosecution practices across the board. Real transformation, however, requires commitment not only from elected chief prosecutors but also from line prosecutors—the attorneys who handle the daily caseloads of the office. When these individuals’ amenability to reform goals and sense of professional identity is at odds with the leadership, the success and sustainability of reforms may be at risk.

To better understand this group of criminal justice professionals and their power to influence system reforms, …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Measuring Law School Clinics, Colleen Shanahan, Jeffrey Selbin, Alyx Mark, Anna Carpenter

Faculty Articles

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet. Though we have these laudable teaching and service goals — and a vast literature describing the role of clinics in both the teaching and service dimensions — we have …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang Ngov

Faculty Articles

No abstract provided.

A Few Criminal Justice Big Data Rules, Stephen E. Henderson

Faculty Articles

As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing. But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world. In that spirit, I propose ten high-level rules to guide criminal …

A Comprehensive Approach To Law School Access Admissions, Jeffrey Minneti

Faculty Articles

This article provides a theoretical framework fo building an effective law school access admission program and it gives that framework flesh, color, and voice through a description of the access admission program at Seattle University School of Law. The framework describes the neurobiology of learning, links that neurobiology to the self-regulated learning cycle, summarizes the learning challenges that students from underrepresented populations frequently face and provides strategies law school faculty and administers can implement to address those challenges. The article then demonstrates how the framework operates in a law school setting through a description of the Academic Resource Center's work …

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Daniel J. Capra, Liesa L. Richter

Faculty Articles

There is a war raging over the admissibility of the prior bad acts of criminal defendants in federal trials. While many circuits treat Federal Rule of Evidence 404(b) as a rule of “inclusion” and liberally admit such prior bad-acts evidence with predictably explosive effects on criminal juries, a few circuits are developing rigorous standards designed to foreclose prosecutorial use of such bad-acts evidence. This Article chronicles the well-documented permissive admission of the prior bad acts of criminal defendants notwithstanding the prohibition on such evidence by Federal Rule of Evidence 404(b)(1), as well as recent efforts by some federal circuits to …

Guns, Bird Feathers, And Overcriminalization: Why Courts Should Take The Second Amendment Seriously, George A. Mocsary, Gwu Law Rps Submitter, Robert J. Cottrol

Faculty Articles

Who should the state punish Why Should punishment be proportional This article surveys in the context of these fundamental criminallaw questions the Second Amendment's constitutional history and jurisprudence A vast body of evidence shows that the framers of both the Second and Fourteenth Amendments intended to protect the individual's right to keep and carry arms for protection against both governmental and private aggressionYet courts unwilling to allow disfavored groups the means of selfdefense or fearing being blamed for criminal firearm activity have failed to enforce the right to bear arms to any meaningful extent After the Civil War the US …

Reforming The Law Of Rape, Stephen J. Schulhofer

Faculty Articles

In this Article, I undertake two distinct tasks. First, I want to discuss what the laws against sexual assault ideally should look like. But second, I also want to discuss rape law from the perspective of someone who has spent the past four years in the messy and frustrating work of legislative compromise, trying to design law reform that can be both progressive and enactable. There is an obvious contradiction in that regard. The goal is to pass reforms that move society and our criminal justice system in a progressive direction, to the place where society ought to be. But …

The Emerging American Police State: The Problem Is Not With The Police, But Higher Up, Wiiliam E. Nelson

Faculty Articles

This article argues that concern with reforming the police will not fully deter the emergence of an American police state or significantly reduce the misuse power of by law enforcement agencies. The police are not the problem; the problem is higher up. Undoubtedly, there are rogue police officers who commit heinous acts, up to and including murder. There are rogues in every occupation. Steps are needed to minimize the number of rogues, although they can never be entirely eliminated. It is far more important to pay close attention, not to occasional rogue police officers, but to the institutional structures and …

From Stop And Frisk To Shoot And Kill: Terry V. Ohio's Pathway To Police Violence, Devon W. Carbado

Faculty Articles

Much of the debate about race and police violence against African Americans center on a question about causation: What precisely causes police violence against African Americans? For some, the answer is decidedly simple: rogue police officers acting outside of the boundaries of the law. For others, the answer is far more complex and implicates a number of structural problems, including racial inequality. Typically, both accounts marginalize the role of law. The rogue cop story highlights bad apples, not bad laws; and the structural racial inequality story generally excludes or diminishes the role of law as a structural force that contributes …

Autonomy And Accountability: Why Informed Consent, Consumer Protection, And Defunding May Beat Conversion Therapy Bans, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Daredevil: Legal (And Moral?) Vigilante, Stephen E. Henderson

Faculty Articles

In 1964, the comic world was introduced to its first physically disabled practicing attorney: Matt Murdock. Initially a proud graduate of "State College" and later more impressively pedigreed as a graduate of either Columbia or Harvard Law, Murdock supplemented his day job as attorney with a side of vigilante justice as Daredevil. In 2003, Murdock became the only attorney superhero to appear as the title character in a movie. A truly awful movie, yes, but a movie all the same. And then in 2015, thanks to the talents of Drew Goddard, Murdock became the star of a terrific television series. …

Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, David A. Schlueter

Faculty Articles

The 2016 amendments to the Uniform Code of Military Justice (“UCMJ”) amounted to a sea change in American military justice. The Military Justice Act of 2016—a major reform of the Uniform Code of Military Justice—is set out in Division E of the National Defense Authorization Act for Fiscal Year 2017, and was signed into law by the President on December 23, 2016. Most of the amendments to the UCMJ addressed in this article will not become effective for some time—perhaps not until January 1, 2019 and in the interim, the current provisions of the UCMJ will continue to apply. Overall, …

Our Criminal Laws, Our Constitution, Sarah A. Seo

Faculty Articles

Reviewing: Risa Goluboff, Vagrant Nation (Oxford University Press 2016); Thomas Andrew Green, Freedom and Criminal Responsibility in American Legal Thought (Cambridge University Press 2014); James B. Jacobs, The Eternal Criminal Record (Harvard University Press 2015).

Designed To Fail: The President's Deference To The Department Of Justice In Advancing Criminal Justice Reform, Rachel E. Barkow, Mark Osler

Faculty Articles

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory both point …

Retooling And Coordinating The Approach To Prosecutorial Misconduct, Anthony C. Thompson

Faculty Articles

Prosecutorial misconduct has stubbornly remained a troubling feature of the American criminal justice system. Judges and scholars have bemoaned its persistence, and some have warned that it threatens to reach epidemic proportions. The problem is that the current approaches we deploy to surface, investigate, and stop such misconduct are inadequate to the task. Too often, the courts, scholars, and the public misread the scope of the problem. They want to treat responses to prosecutorial misconduct as a product of individual bad actors. These individual "bad apples" are viewed as outliers and disconnected from office leadership. But the misconduct is rarely …

Applying Empirical Psychology To Inform Courtroom Adjudication—Potential Contributions And Challenges, Avani Mehta Sood

Faculty Articles

This piece looks to how research at the intersection of law and psychology can help inform courts about cognitive realities that are pertinent to the cases before them. Empirical psychology studies can offer insights into law and legal decisionmaking, while testing legal assumptions to improve the accuracy and fairness of the legal system. The first line of work I describe investigates the operation of a psychological phenomenon that can potentially skew judicial decisionmaking, and points toward possible remedies that depend on decisionmakers being made aware of this cognitive effect. The second line of work explores potential entry points for legal …

Barry Feld: An Intellectual History Of A Juvenile Court Reformer, Martin Guggenheim

Faculty Articles

The article of Professor Barry Feld’s that provides the foundation for this special issue of the Nevada Law Journal—My Life in Crime: An Intellectual History of the Juvenile Court—chronicles the transformation of the juvenile justice system over the course of the past five decades. Feld is certainly the right person to tell this story. He is perhaps the leading scholar in juvenile justice of his generation. And, probably more than any other scholar, his scholarship has had a direct impact on juvenile court practice. He has been a prosecutor, law professor, researcher, commission member, and scholar. He was among the …

No Room For Error: Clear-Eyed Justice In Forensic Science Oversight, Erin E. Murphy

Faculty Articles

The memorandum issued by the Legal Resource Committee to the Organization of Scientific Area Committees (OSAC) convened by the National Institute of Standards and Technology (NIST) is remarkable as much for its existence as for its content. Despite a long history of formal and informal calls to radically restructure forensic science in the United States, the march of reform has been slow and plodding. The emergence of the OSAC, in direct response to the critiques lodged in the 2009 National Academy of Sciences report, marked one small but meaningful step to prod forensic science away from the strict control of …

Fifty Years Later: Miranda & The Police, Tracy Hresko Pearl

Faculty Articles

This symposium asks us to reflect upon the fifty years after Miranda v. Arizona was handed down and to assess what impact Miranda had on law enforcement in this country. More colloquially, it asks whether, on balance, Miranda has been “good news” or “bad news” for the police. As I began to work on answering this question, however, I was troubled by the assumptions seemingly lurking within that question: (1) the assumption that Miranda has mattered at all to the police, (2) the assumption that it has mattered because it has somehow changed the behavior of police and/or the behavior …

Reconsidering Pre-Indictment Publicity: Racialized Crime News, Grand Juries And Tamir Rice, Bryan Adamson

Faculty Articles

"This Article examines pre-indictment publicity or, more accurately, grand jury subject-matter relevant media publicity. It examines the Rice shooting and Loehmann-Garmback grand jury process to determine, from a legal and policy perspective, what should be done to safeguard the integrity of the grand jury process in which police officers are investigatory targets for alleget use of lethal force, when the controversy is racially-charged, and where the media demonstrates pro-law enforcement and anti-minority bias."

Judges Need To Exercise Their Responsibility To Require That Eligible Defendants Have Lawyers, Robert C. Boruchowitz

Faculty Articles

There are many courts in the United States, particularly misdemeanor courts, in which accused persons appear and often plead guilty without ever receiving the advice of counsel, even when they are eligible for a public defender. In various states, between twenty-five and sixty-eight percent of the defendants in misdemeanor cases do not have lawyers. In many courts in South Carolina, there is no public defender ever available. The American Civil Liberties Union (“ACLU”) has filed a class action lawsuit against two South Carolina cities, alleging that they are unconstitutionally denying counsel to eligible accused persons.

There is no question that …

Dismissals As Justice, Anna Roberts

Faculty Articles

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons. First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

Procedural Justice And The Discursive Construction Of Narratives At Trial: Global Perspectives, Janet Ainsworth

Faculty Articles

The structure and practices of justice systems in many parts of the world are undergoing what can be seen as a kind of revolution – and one not merely of professional interest to lawyers and judges. What we are seeing in nation after nation is a move from inquisitorial models of legal adjudication toward adversarial models. The discourses of adjudication in these contrasting types of trials are changing the ways in which lawyers, judges, and witnesses come to see their role in the process. The change has implications that extend far beyond the courtrooms in which trials play out, however. …