Digital Commons Network^™

Kids Can Change: Reforming South Dakota’S Juvenile Transfer Law To Rehabilitate Children And Protect Public Safety, Wendy Hess

Faculty Publications

South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. The mechanism which allows prosecution of a child as an adult is referred to as “juvenile transfer,” because the juvenile court’s jurisdiction over the child is transferred to the adult criminal court. The article discusses how the juvenile transfer mechanism developed — both generally and in South Dakota — as well as how it operates today. The author summarizes research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn …

Prison Health Care After The Affordable Care Act: Envisioning An End To The Policy Of Neglect, Evelyn Malavé

Faculty Publications

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, …

The Coming Crisis In Law Enforcement And How Federal Intervention Could Promote Police Accountability In A Post-Ferguson United States, Kami Chavis Simmons

Faculty Publications

The proliferation of aggressive, and sometimes militarized, police tactics represents the "coming crisis" in law enforcement, although many residents of [inner city] communities might argue that the crisis arrived long ago. Even more disturbing is that these heavy-handed police strategies are employed almost exclusively against racial and ethnic minorities.

This Essay argues that in order to alleviate racial bias in policing and gain the trust and legitimacy of police officers in racially and ethnically diverse communities, local police departments must not only ensure that they are hiring police officers capable of implementing community policing, but must also focus on institutional …

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Faculty Publications

Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …

Mixed Signals On Summary Judgment, Howard Wasserman

Faculty Publications

This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary …

What's Money Got To Do With It?: Public Interest Lawyering And Profit, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton

Faculty Publications

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly …

Characterization Of The 5 Ghz Elevator Shaft Channel, Ruoyu Sun, David W. Matolak

Faculty Publications

In this paper we provide channel characterization results for the elevator shaft channel in the 5-GHz band, based upon measurements conducted in four buildings. This channel is of interest for several applications, including WiFi and public safety. Although several authors have provided elevator shaft channel characteristics for lower-frequency bands (255-MHz, 900-MHz, 1.9-GHz), to our knowledge this is the first work that addresses the 5-GHz band. Moreover, prior work has not thoroughly addressed channel characteristics when the elevator car is in motion, whereas here we provide measurement and modeling results for this dynamic condition. Our measurements were of power delay profiles, …

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …

Order, Technology And The Constitutional Meanings Of Criminal Procedure, Thomas P. Crocker

Faculty Publications

No abstract provided.

The Uneasy Case For Deferring Banker Pay, Eric D. Chason

Faculty Publications

No abstract provided.

Path Loss In An Urban Peer-To-Peer Channel For Six Public-Safety Frequency Bands, David W. Matolak, Qian Zhang, Qiong Wu

Faculty Publications

We provide path loss data and models for a peer-to-peer wireless channel for an urban environment in six public safety bands, for simultaneous transmission to five spatially separated receiving sites. Results are from measurements in Denver, Colorado. The six frequencies at which we measured are (in MHz) 430, 750, 905, 1834, 2400, and 4860. Both line-of-sight and non-line-of-sight conditions were covered, and we quantify path loss exponents and linear-fit standard deviations as functions of frequency and location. Line-of-sight results agree with prior work, but non-line-of-sight exponents, from 3.6-7.3, are generally larger than in most other references.

The First Day Of Criminal Law: Forgetting Everything You Thought You Already Knew, Kami Chavis Simmons

Faculty Publications

Whether from the media or the seemingly endless rotation of Law and Order episodes, many students enter law school with a great deal of knowledge about important concepts that dominate Criminal Law, including murder, manslaughter, conspiracy, self-defense, or insanity. This familiarity with criminal law presents a dual challenge for students and professors alike. First, as future lawyers, they must force themselves to think critically about these familiar topics, and despite their basic knowledge of the criminal justice system, students quickly learn that there is much more to criminal law than meets the eye. Second, part of this critical analysis requires …

Stereo Photo Series For Estimating Natural Fuels In The Netherlands Volume 2: Dunes Region, Brian P. Oswald

Faculty Publications

The photo series are collections of photos and associated field data representing a region of The Netherlands. Volume I includes vegetation types in the Veluwe Region, including Heather, Grasslands, Beech/Hardwoods, Scots Pine, and Douglas-fir. Volume 2 includes dune vegetation types on the island of Texel, plus a site on the mainland near Haarlam. 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 landscapes by analyzing …

Enclave Under Siege: International Norms And Challenges To The Indian Nuclear Complex, Karthika Sasikumar

Faculty Publications

This article analyzes the effects of international connections on India’s nuclear program; specifically, the use of international norms and resources by domestic actors to influence the Indian nuclear enclave. These actors are from the Indian executive (pressure from above) as well as civil society (pressure from below). India’s self-presentation as a responsible state necessitates compliance with international norms, and concomitant restraints on the nuclear estate from ‘above.’ Environmentalists, local residents, and their transnational allies seek to make the nuclear complex more accountable, responsive, and transparent by using social media, civil society institutions, and cross-border links. The Indian case suggests that …

Book Review: (The History Of) Criminal Justice As A Morality Play, Michael M. O'Hear

Faculty Publications

Stephanos Bibas's new book, The Machinery of Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a "participatory morality play," in which ordinary members of the community played a crucial role. In Bibas's view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas's book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects …

Two Cheers For The New Paradigm, Michael M. O'Hear

Faculty Publications

This brief essay comments on Attorney General Eric Holder's much-publicized announcement in 2013 of new federal prosecution priorities. While Holder's announcement represents a welcome shift away from the rigid legalism that has dominated federal prosecutorial policies for a generation, some concerns are also highlighted in the essay.

Special Topic Introduction: Minerva At The Departure Gate, Robert N. Strassfeld

Faculty Publications

No abstract provided.

'Lonesome Road': Driving Without The Fourth Amendment, Lewis R. Katz

Faculty Publications

American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not …

Lessons From Mediators' Stories, John M. Lande

Faculty Publications

This article is part of a symposium discussing the book, Stories Mediators Tell, edited by Eric Galton and Lela Love. The book consists of accounts of 31 actual mediations, followed by reflections of each mediator-author. Some of the chapters tell of extraordinary cases and others are more routine.

A Middle Ground To Subrogation Law Will Protect South Dakota's Insureds, Marilyn Trefz

Faculty Publications

No abstract provided.

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

Defunding State Prisons, W. David Ball

Faculty Publications

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there. This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making …

Freeing Morgan Freeman: Expanding Back-End Release Authority In American Prisons, Frank O. Bowman Iii

Faculty Publications

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific. First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus. Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on …

Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese

Faculty Publications

The recent Great Recession has shaken the nation’s faith in free markets and inspired various forms of actual or proposed regulatory intervention displacing free competition. Proponents of such intervention often claim that such interference with free-market outcomes will help foster economic recovery and thus macroeconomic stability by, for instance, enhancing the “purchasing power” of workers or reducing consumer prices. Such arguments for increased economic centralization echo those made during the Great Depression, when proponents of regulatory intervention claimed that such interference with economic liberty and free competition, including suspension of the antitrust laws, was necessary to foster economic recovery. Indeed, …

Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez

Faculty Publications

No abstract provided.

Private Rights For The Public Good?, J. Janewa Oseitutu

Faculty Publications

The counterfeit medicines discussion is an example of how the use of a turbid rationale for greater intellectual property protections serves sophisticated private interests while potentially harming the public interest. The risk of harm created by counterfeit medicines provides a compelling counter-narrative to the access to medicines critique of intellectual property rights.

Intellectual property advocates and the pharmaceutical industry have portrayed poor global enforcement of intellectual property rights as contributing to the proliferation of dangerous counterfeit medications. Yet, the deliberate linkage in the literature between weak intellectual property rights and the harms caused by counterfeit medicines provides a justification for …

Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams

Faculty Publications

This article discusses two reasons why likening bullying victimization to an educational disability makes sense. First, face-to-face bullying and cyberbullying impose on student victims the sort of educational deprivation that the federal Individuals with Disabilities Education Act (IDEA) addresses in the disabilities arena. Second, today’s belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975.

Securing Civil Protection Orders For Teens When Laws Ignore Teens, Lisa V. Martin

Faculty Publications

Despite the pervasiveness of violence in teen relationships, civil protection order statutes largely ignore teens. The accessibility of protection orders for teens depends primarily on the scope of their rights to standing and legal capacity to pursue claims for protection. Because states largely fail to detail expressly the circumstances under which teens are accorded standing to seek protection orders and legal capacity to represent their own interests in related court proceedings, the accessibility of protection orders for teens in most states remains in flux.

This article explores legal principles and policy arguments that support the extension of standing and legal …

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.