Digital Commons Network^™

The Colors Of Cannabis: Reflections On The Racial Justice Implications Of California's Proposition 64, Steven Bender

Faculty Articles

No abstract provided.

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

Overseeing Agency Enforcement, Rachel E. Barkow

Faculty Articles

A big part of what agencies do — indeed, the core of their executive power—is law enforcement. Whether it is a statute or an agency regulation, agencies make sure that individuals and entities comply with the law. In the case of some agencies, such as prosecutors’ offices or police departments, all they do is law enforcement; they do not possess rulemaking or judicial powers. Even for agencies that possess an array of powers, including rulemaking, enforcement is typically a core part of successfully achieving their statutory mission. Agency authorizing statutes typically give the agency broad discretion to set enforcement policies …

Neuroscience And The Civil/Criminal Daubert Divide, Erin E. Murphy

Faculty Articles

In the modern constitutionalist tradition, the concept of constituent power imagined to be held by “We the People” is widely held to be foundational for the legitimate authority of constitutions. There is, however, a jurisprudentially questionable structural nationalist/statist as well as voluntarist/positivist character in the way that “We the People” as constituent power is predominantly conceptualized in the modern tradition. I will contrast this modern understanding with a different, revised understanding of constituent power as an integral part of a revised understanding of constitutionalism. That revised understanding is both cosmopolitan and post-positivist, even if sovereign states and positive law remain …

Rights And Regulation: The Evolution Of Sexual Regulation, Melissa Murray

Faculty Articles

Since it was decided in 2003, Lawrence v. Texas has underwritten the effort to expand access to marriage to same-sex couples. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage—samesex or otherwise. Instead, Lawrence was a case about criminal sex and more specifically about limiting the state’s authority to regulate and punish nonmarital sex and sexuality. In short, Lawrence was a case about sexual liberty. The focus on Lawrence as a way station to samesex marriage has allowed us to overlook a developing threat to Lawrence’s values …

The Development Of Legal Rights In The American Legal System, Roberto Rosas

Faculty Articles

This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of nine fairly new rights created by state and federal laws. The rights discussed in this article include the following: 1) The right to open carry a firearm; 2) The right to consume marijuana; 3) The right to marry or to civil unions between same-sex couples; …

Deadly Misunderstandings About Police Use Of Deadly Force, Gerald S. Reamey

Faculty Articles

This short article, written for law enforcement and criminal justice professionals in Texas, summarizes and addresses some of the most common ways in which the laws of justification in Texas are misunderstood and misapplied. The focus is on the use of deadly force by law enforcement officers and the specific provisions contained within the Texas Penal Code regulating the use of the highest level of force by police and others.

Ptsd, Tbi, And Oth Discharges: A Case Study Of A Young Service Member, Patricia E. Roberts

Faculty Articles

No abstract provided.

The Rise And Fall Of Social Trustee Professionalism, Michael Ariens

Faculty Articles

Elite lawyers have long urged the private practice bar to account for the interests of more than their clients in their work. A lawyer who served merely as a "mouthpiece" or "hired gun" of clients failed to meet the standards of professionalism, of failing to act, in Roscoe Pound's words, "in the spirit of a public service." Pound's view, expressed in the mid-20th century, was premised on the ideal that the lawyer pursued a public calling that incidentally was remunerative. This ideal required the lawyer to serve as a social trustee, one encumbered by duties for the benefit of society. …

When Does A Juvenile Become An Adult? Implications For Law And Policy, Alexandra O. Cohen, Richard J. Bonnie, Kim A. Taylor-Thompson, B J. Casey

Faculty Articles

The U.S. Supreme Court has issued a series of landmark decisions regarding the culpability of juveniles under the age of eighteen and has increasingly referenced developmental science in these opinions. Still, the line between juvenile court jurisdiction and criminal court jurisdiction varies widely among state laws, as do the minimum ages for other legal or regulatory purposes. Although the operative age of “adulthood” typically falls somewhere between the ages of eighteen and twenty-one, it has been set lower in some important policy contexts, such as the age at which an adolescent is subject to criminal prosecution and punishment. Legal distinctions …

The New Public, Sarah A. Seo

Faculty Articles

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …

Selling Kids Short: How "Rights For Kids" Turned Into "Kids For Cash", Martin Guggenheim, Randy A. Hertz

Faculty Articles

In this Article, we will use one of JLC’s many victories, the case of the so-called “kids for cash” scandal of Luzerne County, Pennsylvania in 2008–2009, to look at the current state of juvenile justice and to look back at how we got here. This was a case so bizarre and shocking that it is still difficult to believe it could have happened, let alone that it could have taken place in the modern era. Over the course of roughly a decade, two judges in the western part of Pennsylvania made millions of dollars by wrongfully imprisoning more than 1,800 …

Secret Policing, Barry Friedman

Faculty Articles

This is a paper about secrecy and policing. It is written at a time of intense discussion about policing in America. There is widespread concern that policing agencies have lost the trust of the communities they are charged to police, and that the "legitimacy" of policing is at risk. Part of what is needed, no doubt, is greater transparency around policing. People do not trust those who keep secrets from them. But it goes beyond that. For too long policing has operated aloof from the regular workings of democracy. And there cannot be democratic engagement with policing if what those …

Something Old, Something New: Reflections On The Sex Bureaucracy, Melissa Murray, Karen Tani

Faculty Articles

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation”—one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have …

Consent: What It Means And Why It’S Time To Require It, Stephen J. Schulhofer

Faculty Articles

In this paper, I argue that it is time—past time—to give workable content to the notion of sexual consent and to require it as a prerequisite to the penetration of another person. Before turning to the core of my argument, however, I will explain the precise form of consent that I defend. Although it should be uncontroversial that consent—whether favored or opposed—is something communicated by the totality of a person’s conduct, there remains potential ambiguity and significant disagreement about how such a requirement is best framed. In Part I, I describe alternative formulations of consent-by-conduct that are currently in play …

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

The Colors Of Cannabis: Race And Marijuana, Steven Bender

Faculty Articles

No abstract provided.

Thugs, Crooks, And Rebellious Negroes: Racist And Racialized Media Coverage Of Michael Brown And The Ferguson Demonstrations, Bryan Adamson

Faculty Articles

The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the …

Conviction By Prior Impeachment, Anna Roberts

Faculty Articles

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed. (1) it relies on assumptions belied by data; (2) it has devastating impacts on individual trials; and (3) it contributes to many of the criminal justice system's most urgent dysfunctions. Yet critiques of the practice are often paired with resignation. Abolition is thought too ambitious because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and …

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Faculty Articles

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Faculty Articles

In this invited contribution to the Law Journal's annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on …

The Truth Might Set You Free: How The Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or Not, Gerald S. Reamey

Faculty Articles

Michael Morton spent twenty-five years in a Texas prison for the murder of his wife, a crime he always denied committing. Following investigation aimed at proving that he was innocent, blatant prosecutorial misconduct came to light. Potentially exculpatory evidence had been hidden by the District Attorney in the case, allowing the actual killer to remain free to kill another victim before finally confessing to his crime. The attention this case attracted brought to light the stingy and discretionary discovery options available to criminal defendants in Texas, who were relegated to hoping that prosecutors would allow access to information in their …

What’S Fear Got To Do With It?: The “Armed And Dangerous” Requirement Of Terry, Gerald S. Reamey

Faculty Articles

Reason to believe a person may be involved in criminal activity is not necessarily also reason to believe that person is armed and dangerous. "Stop and frisk," therefore, more accurately should be thought of as "stop and maybe frisk." But courts have conflated or ignored these two distinctive kinds of suspicion, inviting police officers to frisk automatically during an investigative detention, a practice that ignores the reasonableness requirement of the Fourth Amendment and subjects suspects to the indignity and intrusion of a search unsupported by any level of suspicion. This article explores some of the ways in which this undermining …

Now, More Than Ever: Reflections On Latcrit At Twenty, Steven Bender

Faculty Articles

Offers some thoughts on the importance of renewing our individual and collective commitment to the LatCrit experiment, project, intervention, campaign, family, tent, and community, as it has been variously called.

The Influence Of Exile, Sara K. Rankin

Faculty Articles

Belonging is a fundamental human need, but human instincts are Janus-faced and equally strong is the drive to exclude. This exclusive impulse, which this Article calls "the influence of exile, reaches beyond interpersonal dynamics when empowered groups use laws and policies to restrict marginalized groups' access to public space. Jim Crow, Anti-Okie, and Sundown Town laws are among many notorious examples. But the influence of exile perseveres today: it has found a new incarnation in the stigmatization and spatial regulation of visible poverty, as laws that criminalize and eject visibly poor people from public space proliferate across the nation. These …

Faculty Scholarship Brochure 2016, Seattle University School Of Law

Faculty Articles

No abstract provided.

Where The Rubber Meets The Clouds: Anticipated Developments In Conflict And Conflict Resolution Theory, Heather Pincock, Timothy Hedeen

Faculty Articles

No abstract provided.

Denying The Dyad: How Criminalizing Pregnant Use Harms The Baby, Taxpayers And Vulnerable Women, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases), Stephen Matthew Feldman

Faculty Articles

Whereas modernists constantly attempt to reduce the meanings of texts to an essential core or single truth postmodernists are antifoundationalists and antiessentialists According to postmodernists the meaning of a text is never grounded or stable and therefore one can always find multiple meanings or truths Thus one performs a postmodern flip by taking a segment of a text event or concept that apparently has been reduced to a static meaning or truth and suggesting the possible existence of another meaning or truth The postmodern flip then is completed by exploring how this new meaning or truth of the segment of …