Digital Commons Network^™

Tort Remedies In Military Prisons And Brigs, Brenner M. Fissell, Max Jesse Goldberg

Faculty Publications

Symposium on Military Justice October 2021.

Hosted by National Institute of Military Justice (In honor of NIMJ's 30th Anniversary)

Teaching With Quantitative Data In The Social Sciences At The University Of New Hampshire: An Ithaka S+R Local Report, Patricia Condon, Eleta Exline, Louise Buckley

Faculty Publications

This exploratory study investigated the teaching practices of social science instructors at the University of New Hampshire who engage with undergraduate students using quantitative data in the classroom. The participants interviewed teach both general and discipline-specific data concepts as academic, work, and life skills. Primary challenges discussed by the participants that students face in engaging with these topics are understanding math and statistical concepts, learning new software and computing skills, limited prior exposure to data, and lack of retention of content from earlier courses. Participants addressed challenges in several ways in order to lower barriers to learning, including finding, vetting, …

The Impact Of Separate Opinions On International Criminal Law, Nancy Amoury Combs

Faculty Publications

Dissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same trajectory in other countries as well as in international courts and tribunals. Particularly noteworthy among international courts are those created to prosecute perpetrators of mass atrocities, such as genocide, crimes against humanity, and war crimes. And nowhere are dissents more common than in these mass atrocity courts. Yet, as prevalent as these dissents are, they have received virtually no scholarly or practical attention. …

The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb

Faculty Publications

The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …

A Dose Of Dignity : Equitable Vaccination Policies For Incarcerated People And Correctional Staff During The Covid-19 Pandemic, Itay Ravid, Jordan M. Hyatt, Steven L. Chanenson

Faculty Publications

Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution …

Racism As Public Health Crisis: Assessment And Review Of Municipal Declarations And Resolutions Across The United States, Dara D. Mendez, Jewel Scott Phd, Rn, Fnp-C, Linda Adodoadji, Christina Toval, Monica Mcneil, Mahima Sindhu

Faculty Publications

Racism in the United States has been cited as a key driver of racial health inequities. Racism as a public health crisis has been in the forefront, particularly with respect to state and municipal governments that have developed legislation, resolutions, and declarations. This policy brief includes a review of resolutions and declarations across the US related to Racism as a Public Health Crisis through the end of September 2020. There were 125 resolutions reviewed for content related to the history of racism, reference to racial health equity data, content related to action steps or implementation, and any accompanying funding or …

Racism As Public Health Crisis: Assessment And Review Of Municipal Declarations And Resolutions Across The United States, Dara D. Mendez, Jewel Scott Phd, Rn, Fnp-C, Linda Adodoadji, Christina Toval, Monica Mcneil, Mahima Sindhu

Faculty Publications

Racism in the United States has been cited as a key driver of racial health inequities. Racism as a public health crisis has been in the forefront, particularly with respect to state and municipal governments that have developed legislation, resolutions, and declarations. This policy brief includes a review of resolutions and declarations across the US related to Racism as a Public Health Crisis through the end of September 2020. There were 125 resolutions reviewed for content related to the history of racism, reference to racial health equity data, content related to action steps or implementation, and any accompanying funding or …

Analysis Of The Effects Of Spatiotemporal Demand Data Aggregation Methods On Distance And Volume Errors, Zachary Hornberger, Bruce A. Cox, Raymond R. Hill

Faculty Publications

Purpose — Large/stochastic spatiotemporal demand data sets can prove intractable for location optimization problems, motivating the need for aggregation. However, demand aggregation induces errors. Significant theoretical research has been performed related to the modifiable areal unit problem and the zone definition problem. Minimal research has been accomplished related to the specific issues inherent to spatiotemporal demand data, such as search and rescue (SAR) data. This study provides a quantitative comparison of various aggregation methodologies and their relation to distance and volume based aggregation errors. Design/methodology/approach — This paper introduces and applies a framework for comparing both deterministic and stochastic aggregation …

Analysis Of Administrative Agency Adjudicatory Hearing Use Of Remote Appearances And Virtual Hearings, Fredric I. Lederer, Center For Legal & Court Technology

Faculty Publications

With the advent of the COVID-19 pandemic, federal and state courts and federal adjudicatory agencies suspended most trials and hearings. Faced with the requirement to fulfill their basic mission, many resumed partial operations using computer-based video conferencing,especially for preliminary legal and procedural matters. As time passed, the use of that videoconferencing extended to bench trials in courts and to adjudicatory hearings and proceedings such as settlement meetings, mediations, arbitrations, and status conferences in federal agencies. As of this writing, there have also been a small number of remote or virtual jury trials in state and federal courts.

The Administrative Conference …

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi, Frank O. Bowman Iii

Faculty Publications

This Article reflects on the author's professional experience and intellectual evolution in relation to federal sentencing policy and the Federal Sentencing Guidelines before and after the Supreme Court's decision in Apprendi v. New Jersey.

The account begins with the author's first encounters with the Guidelines when he was a zealous Assistant U.S. Attorney, continues through his transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and concludes with the author pessimistic about the prospects of meaningful federal sentencing reform.

The utility, if any, of these musings will lie partly in the fact that the author has been deeply involved …

Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan

Faculty Publications

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted …

Judicial Application Of Strict Liability Local Ordinances, Brenner Fissell, Guyora Binder

Faculty Publications

No abstract provided.

The Building Blocks Of Legal Correspondence, Mary Ann Robinson

Faculty Publications

No abstract provided.

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Rehabilitating Charge Bargaining, Nancy Amoury Combs

Faculty Publications

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity--the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant's …

Tax Administration And Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated, Leslie Book

Faculty Publications

No abstract provided.

The More Things Change, The More They Stay The Same: The Queensland Police Service As A Model For Sustainable Policing Reform, Geoffrey P. Alpert, Kyle Mclean

Faculty Publications

Police departments are consistently challenged to serve their communities by reducing misconduct and being held accountable. In the United States, policing reform is best described as déjà vu or Groundhog Day, with high-profile groups organising every few years to list the same recommendations for improving the police. Additionally, reform suggestions are too often countered by the comment, “we have always done it this way.” By stark contrast, through the Fitzgerald Inquiry and the work of scholars such as David Bayley, the Queensland Police Service stands as a model for creating sustainable change in policing. In this paper, we compare the …

The Connecticut Second Chance​ ​Pardon​ ​Gap, Colleen Chien, Hithesh Bathala, Prajakta Pingale, Evan Hastings, Adam Osmond

Faculty Publications

Connecticut Law Chapter 961a Section 54-142a, Chapter 960a Sections 54-76o and 54-130a allows individuals whose criminal records meet certain conditions to apply for pardons of their past criminal convictions. Proposed Bill SB 403,2 Connecticut’s “Clean Slate” Act, likewise would provide for automatic erasure of the records of a subset of individuals who can apply for pardons. Ascertaining, then applying existing pardons law and proposed “Clean Slate” law to a sample of 309,827 criminal histories of individuals with Connecticut convictions records, and then extrapolating to the estimated population of 450K individuals in the state with convictions,3 we estimate the share and …

Eight Strategies That Enhance Legal Writing, Douglas E. Abrams

Faculty Publications

A few years ago, I spoke about legal writing at an annual forum of Missouri’s appellate judges, held at the University of Missouri School of Law in Columbia. The hour-long presentation advanced eight strategies that enable judges and practicing lawyers to sharpen their writing. These eight strategies appear below in this article.

A Corporate Law Rationale For Reparations, Susan S. Kuo, Benjamin Means

Faculty Publications

Should the United States pay reparations to African Americans? A majority of Americans object that they are not personally responsible for slavery or Jim Crow. The objection is rooted in the principle of ethical individualism, which holds that people can be blamed only for their own actions.

This Article contends that the ethical individualism objection to reparations is misplaced because it assumes that what matters is the culpability of each citizen. We argue that, like a corporation, the United States is a legal person. Consequently, seeking reparations from the United States does not turn on the guilt of its citizens …

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

The Opioid Doctors: Is Losing Your License A Sufficient Penalty For Dealing Drugs?, Adam M. Gershowitz

Faculty Publications

Imagine that a medical board revokes a doctor's license both because he has been peddling thousands of pills of opioids and also because he was caught with a few grams of cocaine. The doctor is a family physician, not a pain management specialist. Yet, during a one-year period he wrote more than 4,000 prescriptions for opioids--roughly eighteen scripts per day. Patients came from multiple states and from hundreds of miles away to get oxycodone prescriptions. And the doctor prescribed large quantities of opioids--up to 240 pills per month--to patients with no record of previously needing narcotic painkillers. Both federal and …

Judging By The Cover: On The Relationship Between Media Coverage On Crime And Harshness In Sentencing, Itay Ravid

Faculty Publications

Does the mass media affect judicial decisionmaking? This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing. To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through …

Pittsburgh, The Realest City: Shit Talk’N, Storytell’N, Social Liv’N, Jacqueline Roebuck Sakho

Faculty Publications

This article documents my lived experience as a participant observer in a writing/performance course that brought together returning citizens, police officers, community activists, university students and faculty. I am utilizing Hoffman’s (2004) “Living Stories” framework and Cutts’ (2016) expansion of Poetic Inquiry to present “Ars Spirituality” as the lens to frame the discussion of my storytelling and storiography experience. Curated by Duquesne University sociologist Norman Conti, with theoretical justification from C. Wright Mills and Erving Goffman, the course was co-facilitated by award-winning actor/writer Roger Guenveur Smith and world-renowned writing coach and performer Susan Stein over Zoom video conferencing …

Creating Space For Community Representation In Police Reform, Ayesha Bell Hardaway

Faculty Publications

Input from affected communities is an essential component of the reform process aimed at remedying unconstitutional police practices. Yet, no court in DOJ-initiated police reform consent decree cases has ever granted a community organization’s motion to intervene as a matter of right. Judicial opinions in those cases have largely truncated the Federal Civil Rule 24 analysis when evaluating the interests of impacted communities. Thus, the most success achieved by a small few has been permissive intervention or amici status. The models used by the Department of Justice to elicit the community perspective have largely been frustrating and have failed to …

The "Innocence" Of Bias, Osamudia James

Faculty Publications

No abstract provided.

Nondelegation And Criminal Law, Carissa Byrne Hessick, F. Andrew Hessick

Faculty Publications

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these delegations, placing essentially no limits on Congress’s ability to delegate lawmaking power to agencies.

In its recent decision, Gundy v. United States, the Court relied on this unrestrictive doctrine to uphold a statute delegating the power to write criminal laws. In doing so, the Court did not address whether greater restrictions should apply to delegations involving criminal law. Instead, it applied the same …

Jailhouse Immigration Screening, Eisha Jain

Faculty Publications

Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases …

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

"It Is Not Necessary For Eagles To Be Crows": Book Review, Neil Fulton

Faculty Publications

No abstract provided.