Digital Commons Network^™

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Evidentiary Rulings As Police Reform, Seth W. Stoughton

Faculty Publications

How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. But the deterrent model is not the only method through which the law can affect police behaviors. In this article, Stoughton contends that evidentiary considerations have the potential to change both police training and agency culture. Stoughton’s contention is based on the observation that evidentiary considerations have shaped not just police behavior but also the culture of policing …

"Stand Your Ground" And Self Defense, Cynthia Ward

Faculty Publications

No abstract provided.

Stereo Photo Series For Estimating Natural Fuels In The Netherlands Volume 3: Veen, Brian P. Oswald

Faculty Publications

The photo series is a collection of photos and associated field data representing a region of The Netherlands. Volume 3 includes peatland vegetation types located in Northumberland National Park in England. These sites were used to represent those found in The Netherlands since peatlands in the UK are larger and thereby better for the field research. For each vegetation type, sites were sampled with varying fuel loads. The description of the sites consists of a wide-angle site photo, supplemented with field data on the various fuel loads and vegetative layers. The photo series is an important ecological tool to assess …

The Mirage Of Immigration Reform, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Regulating The Underground: Secret Supper Clubs, Pop-Up Restaurants And The Role O F Law, Sarah B. Schindler

Faculty Publications

Instagram pictures of elegantly plated dinners, long farmstyle tables, and well-to-do people laughing in what looks like a loft apartment are followed by commenters asking, “Where is this?” This is the world of underground dining. Aspiring and established chefs invite strangers into their homes (or their friends’ stores after hours, or the empty warehouse at the edge of town, or the nearest farm) for a night of food and revelry in exchange for cash. Although decidedly antiestablishment, these secret suppers and pop-up restaurants are popular—there are websites to help people locate them, and many respected publications have penned stories about …

Protest, Policing, And The Petition Clause: A Review Of Ronald Krotoszynski's Reclaiming The Petition Clause, Christina E. Wells

Faculty Publications

This essay, a short book review of Ronald Krotoszynski Jr.'s book, Reclaiming the Petition Clause Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for Redress of Grievances, examines the variety of restrictions that actually affect protestors in the modern landscape. Professor Krotoszynski effectively argues that the Supreme Court's current use of content neutral time place and manner restrictions allows government officials to engage in surreptitious content censorship and also revives the defunct crime of seditious libel. His proposal to locate protestors' rights in the petition clause of the First Amendment is both historically grounded and attempts to …

Institutional Racism: Perspectives On The Department Of Justice's Investigation Of The Ferguson Police Department., Cassandra Chaney Phd

Faculty Publications

On August 9, 2014, Michael Brown, an 18-year old Black man, was fatally shot by Darren Wilson, a white policeman with the Ferguson Police Department. The incident sparked protests and acts of vandalism in Ferguson as well as widespread calls for an investigation into the incident. On September 3, 2014, The Justice Department announced that it would open a broad civil rights investigation that would examine whether the Ferguson police had a history of discrimination or misuse of force beyond the Michael Brown case. On March 4. 2015, Attorney General Eric H. Holder publicly criticized the Ferguson Police Department …

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Publications

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach—unequal allocation of peremptory challenges to prosecution and defense—and yet many state legislatures have recently abandoned asymmetry, with some legislators declaring …

It's Alive!: How Early Common Law Changes In The Right Against Self-Incrimination Inform The Right's Continuing Relevance, Sheldon Evans

Faculty Publications

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article …

Longstanding Agency Interpretations, Anita S. Krishnakumar

Faculty Publications

How much deference — or what kind — should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations — at both the Court of Appeals and the U.S. Supreme Court levels — turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation …

Increasing Police Accountability: Restoring Trust And Legitimacy Through The Appointment Of Independent Prosecutors, Kami Chavis Simmons

Faculty Publications

Criminal prosecution of police officers raises a myriad of issues that this Article will begin to explore. First, while there has been a paradigmatic shift in police accountability in recent decades from remedies focusing on individual officers to those focusing on broad organizational reform, this Article will explore the important role that the deterrence rationale of criminal prosecution might play as one tool to address police misconduct. Second, other than deterrence, criminal prosecutions serve numerous goals, including retribution for the harms imposed upon the victims and society for the crimes. Historically, many racial minorities, when compared with their white counterparts, …

Let The Good Time Roll: Early Release For Good Behavior In Prison, Michael M. O'Hear

Faculty Publications

No abstract provided.

The Politics Of Narrative: Law And The Representation Of Mexican Criminality, Deborah Weissman

Faculty Publications

No abstract provided.

The Tale Of Two Economies: A Comparative Macroeconomic Analysis Of Palo Alto And East Palo Alto, Aditya Kotak, Safwan Siddiqi, Fred Foldvary

Faculty Publications

Cities in the USA have experienced diverse growth rates and levels of prosperity. Some cities flourish in prosperity, while others suffer economic recession. This study examines why cities have had different outcomes. We investigated three elements: 1) What are the factors that play a role in the shaping of a municipal’s economy? 2) What are the implications of these factors? 3) Which policies promote economic growth and prosperity? This essay aims to offer policy directions for cities that are not performing well. The paper applies a comparative analysis of two nearby cities, a flourishing economy contrasted with a troubled economy. …

Co-Creating Value: Student Contributions To Smart Cities, Chetan S. Sankar, Barry A. Cumbie

Faculty Publications

No abstract provided.

Evaluating Gps Effectiveness For Natural Resource Professionals: Integrating Undergraduate Students In The Decision-Making Process, Daniel Unger, I-Kuai Hung, Yanli Zhang, David Kulhavy

Faculty Publications

Undergraduate students pursuing a Bachelor of Science in Forestry (BSF) degree at Stephen F. Austin State University (SFA) attend an intensive 6-week residential hands-on instruction in applied field methods. For students pursuing the BSF degree knowing the exact location of a forestland is crucial to the understanding and proper management of any related natural resource. The intensive 6-week instruction includes teaching how to use the Global Positioning System (GPS) to accurately record the spatial location of an earth’s surface feature. After receiving hands-on instructions during the summer of 2014, students were taken to the field to collect real-world locations. Students …

Rights Speech, Timothy Zick

Faculty Publications

Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …

Liberty Without Capacity: Why States Should Ban Adolescent Driving, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Quantifying Natural Resources Using Field-Based Instruction And Hands-On Applications, Daniel Unger, David Kulhavy, I-Kuai Hung, Yanli Zhang

Faculty Publications

Undergraduate students pursuing a Bachelor of Science in Forestry (BSF) degree at Stephen F. Austin State University (SFA) attend an intensive 6-week residential hands-on instruction in applied field methods. For students pursuing the BSF degree knowing the exact location, length, or area of a forestland is crucial to the understanding and proper management of any related natural resource. The intensive 6-week instruction includes teaching how to use the Global Positioning System (GPS) to accurately record the true spatial location of an earth’s surface feature. After receiving hands-on instructions during the summer of 2013, students were taken to the field to …

Automated Vehicles Are Probably Legal In The United States, Bryant Walker Smith

Faculty Publications

This article provides the most comprehensive discussion to date of whether so-called automated, autonomous, self-driving, or driverless vehicles can be lawfully sold and used on public roads in the United States. The short answer is that the computer direction of a motor vehicle’s steering, braking, and accelerating without real-time human input is probably legal. The long answer, which follows, provides a foundation for tailoring regulations and understanding liability issues related to these vehicles.

The article’s largely descriptive analysis, which begins with the principle that everything is permitted unless prohibited, covers three key legal regimes: the 1949 Geneva Convention on Road …

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms And The Local Food Movement, Sarah B. Schindler

Faculty Publications

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends’ microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive1 actions that people living in urban and suburban communities are undertaking to …

Large-Scale Site And Frequency Diversity In Urban Peer-To-Peer Channels For Six Public Safety Frequency Bands, David W. Matolak, Kate A. Remley, Christopher L. Holloway, Qian Zhang, Qiong Wu

Faculty Publications

We report on peer-to-peer large-scale wireless channel characteristics for an urban environment in six public-safety bands, for five simultaneous receiving sites. Results are based upon measurements taken in Denver in July 2009 with stationary receivers and a pedestrian transmitter. The six frequencies at which we measured are (in MHz) 430, 750, 905, 1834, 2400, and 4860. We quantify both site and frequency diversity, and show that 5-site selection yields minimum average gains of 15 dB in mean received power levels; 5-site selection diversity also reduces received power variation by 17-29 dB, depending on frequency. Frequency diversity yields similar gains. By …

Mental Illness And Danger To Self, Cynthia V. Ward

Faculty Publications

No abstract provided.

Testimonial Is As Testimonial Does, Ben L. Trachtenberg

Faculty Publications

In December 2012, the Florida Law Review published Ben Trachtenberg’s article “Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause,” 64 Fla. L. Rev. 1669 (2012). Using the example of hearsay admitted in criminal prosecutions related to the Holy Land Foundation, the article argued that under Crawford v. Washington, courts had begun admitting unreliable hearsay against criminal defendants that previously would have been barred under Ohio v. Roberts, the Confrontation Clause case upended by Crawford.

Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan, responded in “The Mold …

Why State Prisons?, W. David Ball

Faculty Publications

The United States finds itself in an era where the cost of state prisons is both extremely large and politically salient. State prisons held approximately 1.3 million people in 2012, almost twice as many people as county jails and more than five times as many as federal prisons. The total cost of state corrections in2010 was $48.5 billion. In response, states nationwide are now experimenting with ways to reduce their role in imprisonment. The United States Department of Justice's Bureau of Justice Assistance launched the Justice Reinvestment Initiative to promote policies that reduce prison populations; the seventeen states that have …

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Y. Cover

Faculty Publications

Court opinions in the terrorism context are often distinguished by fact-finding that relates to risk assessment. These risk assessments — inherently policy decisions — are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result, courts are apt to defer to the government and require less evidence in support of measures that curtail civil …

Redesigning Sentencing, W. David Ball

Faculty Publications

Design thinking purports to take the methods of industrial and product design and apply them to social and political problems. One particularly intractable problem in California is its bloated penal code, which has expanded almost continuously over the past forty years. Since 1983, more than a dozen bills have been introduced in the CaliforniaLegislature to establish a sentencing commission. All have failed. In this paper I explore how design thinking might help frame our discussion of mass incarceration in general and sentencing commissions in particular:what kinds of changes are possible within the foreseeable future, how wecan make any changes sustainable, …

The Incidental Regulation Of Policing, Seth W. Stoughton

Faculty Publications

What do the laws governing municipal annexation, collective bargaining, and race-conscious employment decisions have in common? Each plays a significant and under-appreciated role in shaping local law enforcement practices even though each, on its face, has nothing to do with policing.

This Article explores the incidental regulation of policing, illustrating the concept with examples from different areas of state and federal law. Many legal decisions happen to include police as constituents of a broader regulatory ambit, and thus are not intended to have any particular effect on the unique functions of policing. Nevertheless, these laws have profound ramifications for police …

The Legacy Of Stop And Frisk: Addressing The Vestiges Of A Violent Police Culture, Kami Chavis Simmons

Faculty Publications

For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed.

While there is an abundance of analysis regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, an under examined facet of this policy and its implementation is the inherently violent nature of these encounters. …