Digital Commons Network^™

Police Body-Worn Cameras, Seth W. Stoughton

Faculty Publications

Since the summer of 2014, community members, politicians, and police executives across the country have called for greater police accountability and improvements in police-community relations. Body-worn cameras are widely seen as serving both ends. Today, thousands of police agencies are exploring, adopting, and implementing body-cam programs. A survey by the Major Cities Chiefs Association and the Major County Sheriffs’ Association found that 95% of surveyed agencies had either implemented or were committed to implementing a BWC program.

Body-worn cameras are here, and more are coming. Mary Fan, for example, has described a “camera cultural revolution” in which “the future will …

Legal Deserts: A Multi-State Perspective On Rural Access To Justice (Forthcoming), Danielle M. Conway

Faculty Publications

Rural America faces an increasingly dire access to justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas. One critical aspect of that crisis is the dearth of information and research regarding the extent of the problem and its impacts. This article begins to address that gap by providing surveys of rural access to justice in six geographically, demographically, and economically varied states: California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin. In addition to providing insights about the distinct rural challenges confronting each of these states, the legal resources available, and existing policy responses, …

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …

Conceived Versus Lived Social Spaces And The Transformation Of The Morro Da Providência Favela Of Rio De Janeiro Since 2008, Jamie Worms, Andrew Sluyter

Faculty Publications

No abstract provided.

General Principles Of Procedural Law And Procedural Jus Cogens, S. I. Strong

Faculty Publications

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law. The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify …

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Faculty Publications

No abstract provided.

The Attorney-Client Privilege, Client Professions And Wrongful Convictions: Immunity As A Statutory Solution, Richard E. Myers Ii

Faculty Publications

No abstract provided.

Housing Defense As The New Gideon, Kathryn A. Sabbeth

Faculty Publications

New York City is the first jurisdiction in the United States to create a right to appointed counsel for poor people facing eviction. This Article is the first to analyze NYC’s ground-breaking legislation. The Article draws on NYC’s housing defense statute to highlight three ways in which the creation of a civil right to counsel has the potential to build on and expand beyond the Gideon v. Wainwright model. The right to appointment of criminal defense counsel, as recognized in Gideon, was part of the Supreme Court’s indirect response to the Civil Rights Movement. In contrast, the NYC legislature …

Citation-Based Benchmarks And Individual Accounting Faculty Research Rankings By Topical Area And Methodology, Garrison Nuttall, Neal Snow, Scott L. Summers, David A. Wood

Faculty Publications

This paper provides citation rankings and benchmarking data for individual accounting researchers disaggregated by topic and methodological area and studies which factors increase citation totals. Based on Google Scholar data from 7,113 articles published in respected accounting journals, we find that citation totals differ significantly based on accounting topic area (accounting information systems, audit, financial, managerial, tax, other) and methodology (analytical, archival, experimental, other), suggesting the need to separately benchmark authors who publish in these groups. We also find that authors who have a broad collaboration network, graduated from a school that started a journal, are topic specialists, or publish …

The Plausible And The Possible: A Bayesian Approach To The Analysis Of Reasonable Suspicion, W. David Ball

Faculty Publications

The United States Supreme Court uses the wrong approach to analyze reasonable suspicion. The Court asks whether, if criminal activity were afoot, an officer would be likely to see what she saw (e.g. furtive gestures or flight from police). The ultimate question we are interested in, however, is whether, given what the officer saw, her conclusion about criminal activity was reasonable. These two questions are different. Even if it is highly likely that an officer would make a set of observations when criminal activity is afoot, it does not follow that criminal activity is itself highly likely when an officer …

The Intersection Between Young Adult Sentencing And Mass Incarceration, Josh Gupta-Kagan

Faculty Publications

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young …

The Jury Sunshine Project: Jury Selection Data As A Political Issue, Ronald F. Wright, Kami Chavis, Gregory S. Parks

Faculty Publications

In this Article, the authors look at jury selection from the viewpoint of citizens and voters, standing outside the limited boundaries of constitutional challenges. They argue that the composition of juries in criminal cases deserves political debate outside the courtroom. Voters should use the jury selection habits of judges and prosecutors to assess the overall health of local criminal justice: local conditions are unhealthy when the full-time courtroom professionals build juries that exclude parts of the local community, particularly when they exclude members of traditionally marginalized groups such as racial minorities. Every sector of society should participate in the administration …

The Expansion Of Child Pornography Law, Carissa Byrne Hessick

Faculty Publications

This Symposium essay identifies two dramatic expansions of child pornography law: prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images. These prosecutions have expanded the definition of the term ‘‘child pornography’’ well beyond its initial meaning. What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of the conclusion that those individuals are sexually attracted to children. If law enforcement concludes that a …

Interest In Police Patrol Careers: An Assessment Of Potential Candidates' Impressions Of The Police Recruitment, Selection, And Training Processes, Charles Scheer, Michael Rossler, Leonard Papania

Faculty Publications

Both criminal justice researchers and practitioners have suspected that generational preferences and the nature of police patrol work have acted as dual forces leading potential police recruits away from police careers, resulting in large numbers of unfilled police positions. This challenge is exacerbated by accelerating retirements and expanding police duties. Police recruitment became an even larger managerial issue after the 2008 recession failed to resolve the most critical factor driving people away from police careers in the first place: police departments saw fewer and fewer qualified applicants, despite the recession bringing more applicants in number. In the wake of the …

Legal Deserts: A Multi-State Perspective On Rural Access To Justice, Hannah Haksgaard, Lisa Pruitt, Danielle Conway, Michele Statz, Lauren Sudeall, Amanda Kool

Faculty Publications

No abstract provided.

The Peace Vs. Justice Puzzle And The Syrian Crisis, Paul R. Williams, Lisa K. Dicker, C. Danae Paterson

Faculty Publications

(Excerpt)

Those involved in peace negotiations often face the dilemma of balancing demands for justice with the imperative of stopping the conflict as quickly as possible. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of death by torture—the peace versus justice puzzle is a living dilemma with which those involved in the peace process grapple with on a daily basis.

Is it morally permissible to allow conflict (and the attendant human suffering) to continue, …

The Myth Of Preliminary Due Process For Misdemeanor Prosecutions In New York, Anjali Pathmanathan

Faculty Publications

The existing criminal procedure laws of New York do not afford the misdemeanor accused any meaningful preliminary opportunity to fight the substantiation of the accusations against them. This is problematic given that a criminal prosecution can have extreme consequences on an individual’s life, including the loss of liberty, employment, housing, child custody or freedom from immigration removal proceedings. This article therefore analyzes the weaknesses in the existing criminal procedure laws for these prosecutions, and assesses how historical protections dissolved into the myth of preliminary due process for misdemeanor cases today. Ultimately, since the current procedures are ineffective in protecting against …

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Faculty Publications

(Excerpt)

Student activism has been part of the fabric of American higher education since the eighteenth century. Indeed, some scholars have called it "as American as apple pie." From Harvard's "Great Butter Rebellion" in 1766 when students pushed for better food to the multicultural movement of today when students have demanded increased diversity in student, staff, faculty, and curriculum, students have long pressed to have their voices heard. Continuing in this tradition, we now live in an age of student activists who, by organizing through social media, are getting more people involved in political conversations and causes than would otherwise …

The New Governors: The People, Rules And Processes Governing Online Speech, Kate Klonick

Faculty Publications

Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque.

This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and internal documents, this Article describes how three major online platforms — Facebook, Twitter, and YouTube — …

Interrogation Parity, Kate Levine, Stephen Rushin

Faculty Publications

This Article addresses the special interrogation protections afforded exclusively to the police when they are questioned about misconduct. In approximately twenty states, police officers suspected of misconduct are shielded by statutory Law Enforcement Officer Bills of Rights. These statutes frequently limit the tactics investigators can use during interrogations of police officers. Many of these provisions limit the manner and length of questioning, ban the use of threats or promises, require the recording of interrogations, and guarantee officers a reprieve from questioning to tend to personal necessities. These protections, which are available to police but not to ordinary criminal suspects, create …

#Socialjustice: Combatting Implicit Bias In An Age Of Millennials, Colorblindness, & Microaggressions, Renee Nicole Allen, Deshun Harris

Faculty Publications

Law schools, in an effort to produce practice-ready graduates, are in an opportune position to take the lead in confronting social justice. Many schools are shifting from traditional classroom instruction to more experiential learning environments which place students early in their academic pursuits in contact with clients and legal problems. While academic support originally focused on racial integration in law schools, today’s Academic Support professionals support students who are diverse in various ways. As professionals, we cannot assume that our diverse students do not carry bias. Implicit bias, a bias one is not consciously aware of, has the ability to …

Punishing Criminals For Their Conduct: A Return To Reason For The Armed Career Criminal Act, Sheldon Evans

Faculty Publications

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism. This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality. This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to …

Simplicity As Justice, Kathryn A. Sabbeth

Faculty Publications

Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few …

Defining The Opioid Epidemic: Congress, Pressure Groups, And Problem Definition, Taleed El-Sabawi

Faculty Publications

The passage of the Comprehensive Addiction and Recovery Act of 2016 evidences a shift in federal legislative support from criminal justice oriented legislative alternatives to more health oriented legislative alternatives to addressing the ongoing Opioid Epidemic. Such a shift was preceded by a redefinition of problem drug use in the policy discourse from an issue of deviancy to a health issue. However, the redefinition of problem drug use as a health issue, has been dominated by policy narratives and causal stories that do not define problem drug use in a manner that aligns with a multi-modal public health oriented legislative …

The Silence Penalty, Jeffrey Bellin

Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments—including the results of a new 400-person mock juror simulation conducted for this Article—and data from real trials. It concludes that the penalty defendants suffer when they refuse …

The Science Of Neurobiology Of Sexual Assault Trauma And The Utah Legal System, Donna Kelly, Julie L. Valentine

Faculty Publications

Sexual assault triggers a cascade of physiological responses in victims, commonly referred to as the neurobiology of sexual assault trauma. Victims often report the inability to move or resist, memory loss, and loss of our altered feelings of consciousness – reactions which often negatively impact the perception of their credibility. Recently, the criminal justice system has begun to connect these normal, physiological responses in understanding common victim behaviors and responses. As knowledge of the neurobiology of sexual assault trauma disseminates throughout the criminal justice system, it is readily apparent that education, new protocols, and trauma informed interview techniques are required. …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

Ending Harassment By Starting With Retaliation, Nicole Buonocore Porter

Faculty Publications

This Essay posits that the fear of retaliation significantly contributes to the problem of harassment—we cannot hope to end harassment without starting by addressing the reality of retaliation. Although some scholars have argued that the fear of retaliation is one reason women don’t report harassment, and some scholars have discussed the inadequacies of anti-retaliation law, this Essay breaks new ground by arguing that ending harassment must start with preventing retaliation. Part I backs up what seems to be a commonsense proposition: Many victims of harassment do not report it because they fear retaliation.5 Part II then describes the difficulty in …

Sharks And Minnows In The War On Drugs: A Study Of Quantity, Race And Drug Type In Drug Arrests, Joseph E. Kennedy, Isaac Unah, Kaci Wahlers

Faculty Publications

No abstract provided.

What Motivates Legislators To Act: Problem Definition & The Opioid Epidemic, A Case Study, Taleed El-Sabawi

Faculty Publications

This article explores why federal legislators may have been motivated to treat the current opioid crisis as a health issue, when past drug problems have been treated as a criminal justice issue. Using theories from political science, policy studies and sociology, this article summarizes leading theories of legislative behavior and applies them to the current opioid crisis, in an effort to better understand what motivates legislators to enact legislation to solve pressing social problems in a way that reframes the problem. Part II of this article provides an overview of the Comprehensive Addiction and Recovery Act, its significance, and how …