Digital Commons Network^™

Do Local Governments Really Have Too Much Power? Understanding The National League Of Cities' Principles Of Home Rule For The 21st Century, Nestor M. Davidson, Richard Schragger

Faculty Scholarship

This Article explains and defends the National League of Cities’ Principles of Home Rule for the 21st Century, which the authors participated in drafting. The Principles project both articulates a vision of state-local relations appropriate to an urban age and, as with previous efforts stretching back to the Progressive Era, includes a model constitutional home rule article designed to serve as the foundation for state-level constitutional law reform. This Article explains the origins of the Principles, outlines the major components of its model constitutional provision, and defends the model against a set of criticisms common to this and past home-rule …

Principles Of Home Rule For The 21st Century, Nestor M. Davidson

Faculty Scholarship

This has been excerpted and adapted from the National League of Cities Principles of Home Rule for the 21st Century report. Read the full report at: https://www.nlc.org/wp-content/uploads/2020/02/Home-Rule-Principles-Rep ortWEB-2-1.pdf.

This Is Not A Drill: The War Against Antiracist Teaching In America, Kimberlé W. Crenshaw

Faculty Scholarship

On January 5, 2022, Professor Kimberlé Williams Crenshaw received the 2021 Triennial Award for Lifetime Service to Legal Education and the Legal Profession from the Association of American Law Schools (AALS). In this modified acceptance speech delivered at the 2022 AALS Awards Ceremony, she reflects on the path that brought her to this moment and the crisis over antiracist and social justice education that is unfolding today. Arguing that the legal academy bears a collective responsibility to fight back against the silencing of antiracist frameworks, she calls on legal educational institutions to confront their historical agnosticism toward racial subordination and …

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …

No Runs, Few Hits And Many Errors: Street Stops, Bias And Proactive Policing, Jeffrey A. Fagan

Faculty Scholarship

Equilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient and suggest bias. An unbiased officer who is seeking to maximize her hit rate would reduce the number of unproductive stops toward a group with the lower hit rate. An unbiased policing regime would generate no differences in hit rates between groups.

We use this framework to test for racial …

Constitutional Gun Litigation Beyond The Second Amendment, Joseph Blocher, Noah Levine

Faculty Scholarship

No abstract provided.

The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett

Faculty Scholarship

Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …

Viral Injustice, Brandon L. Garrett, Lee Kovarsky

Faculty Scholarship

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional …

Reforming State Bail Reform, Shima Baradaran Baughman

Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

Unraveling The Web Of Legal Protection: Race, Police Misconduct, And The Favorable Termination Rule, Jasmine Gonzales Rose, Caitlin Glass, Neda Khoshkhoo

Faculty Scholarship

The murder of George Floyd raised greater awareness of the pervasiveness of racialized police violence in the United States. Advocates, activists, and concerned policymakers have drawn attention to legal barriers that prevent accountability for police who kill and abuse Black, Indigenous, and other people of color (“BIPOC”), such as qualified immunity. However, the true extent of the legal system’s protections regarding racialized police misconduct remains unrecognized. A key example of this is the favorable termination rule, which many jurisdictions have interpreted as imposing an “indications-of-innocence” standard. This standard, in numerous instances, serves as a procedural loophole that prevents civil rights …

Punitive Surveillance, Kate Weisburd

Faculty Scholarship

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people …

New Originalism: Arizona's Founding Progressives On Extreme Punishment, John Mills, Aliya Sternstein

Faculty Scholarship

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly regarding constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its Constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds. Arizona was founded in 1912 as …

The House Always Wins: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

Faculty Scholarship

No abstract provided.

Pursuing Citizenship During Covid-19, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

The New Normal: Regulatory Dysfunction As Policymaking, Ming Hsu Chen, Daimeon Shanks

Faculty Scholarship

Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities are common in policymaking and they make agencies vulnerable to dysfunction. Irregularities are not bugs, but features of the administrative state. Sometimes, a national emergency makes political influence unavoidable and urges departures from usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a pre- determined political goal …

Colorblind Nationalism And The Limits Of Liberalism, Ming Hsu Chen

Faculty Scholarship

Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …

Police Secrecy Exceptionalism, Christina Koningisor

Faculty Scholarship

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up. This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with …

Transparency Deserts, Christina Koningisor

Faculty Scholarship

Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law. In contrast, scholars have paid comparatively little attention to transparency laws at the …

What The Pandemic Taught Us: The Health Care System We Have Is Not The System We Hoped We Had, William M. Sage

Faculty Scholarship

The United States spends nearly twice as much per capita on medical care as any other country. The United States has the world’s most advanced biomedical technologies, sophisticated hospitals, and skilled health professionals. The United States has a national public health body, the Centers for Disease Control and Prevention (CDC), that is generally considered the world’s leader in infectious disease detection and response. Nonetheless, the United States suffered among the world’s worst COVID-19 disease burdens and outcomes, inflicting largely avoidable harm on patients, health professionals, and the broader community.

Why this happened is clearly important. But that it happened is …

Beyond Bail, Jenny E. Carroll

Faculty Scholarship

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities …

Exacting Inclusion: Property Theory, The Character Of Government Action, And Implicit Takings, Donald J. Smythe

Faculty Scholarship

Recent takings cases challenging inclusionary housing ordinances tap into an ongoing controversy about whether government interventions in the housing market do more harm than good; but they also raise much more general questions about takings law. This Article uses the controversy raised by recent housing cases to probe the relationship between the Supreme Court’s regulatory takings jurisprudence and its exaction takings jurisprudence and to suggest a more coherent approach to implicit takings. The Court’s exaction takings jurisprudence is well-designed if it is applied appropriately. As a general matter, it encourages the mitigation of socially harmful nuisances, incentivizes developers to make …

Immigration Detention As An Obstacle To Decarceration, Pedro Gerson

Faculty Scholarship

Criminal legal reform and measures to reduce carceral populations have received increasing media and public policy attention nationwide. These efforts have mainly ignored a parallel development: the consistent rise in the use of immigration detention over the last decade. This Article bridges that gap by arguing that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. This argument relies on three different descriptive claims. First, much scholarly work has shown the extent to which vested interests have hampered criminal legal reform; these same interests could look to immigration detention as an alternative protection. Second, the extent …

Servitudes Done "Proper"Ly: Propriety, Not Contract Law, Elizabeth Elia

Faculty Scholarship

The law of servitudes has changed dramatically in the last hundred years. Legal scholars have been successful in documenting these changes in case law, but less successful in articulating a unified set of principles that guide the current law of servitudes. One explanation that received significant attention is the idea that efficient recording systems in the United States have liberated property owners from the constraints of traditional property laws disfavoring servitudes and have allowed these owners the broader freedoms of contract law. However, this explanation, and the sweeping common law reforms that flow from it, have not resonated with courts. …

Rethinking The Plra: The Resiliency Of Injunctive Practice And Why It’S Not Enough, Allison Freedman

Faculty Scholarship

During the latter part of the twentieth century, prison populations in the United States increased exponentially and the nation became notorious for mass incarceration. Despite what many viewed as a broken prison system, in 1996 Congress passed the Prison Litigation Reform Act (“PLRA”), with the avowed purpose of hindering prisoners and their advocates from bringing civil rights actions to challenge prison conditions, laws, and policies. To accomplish this, Congress curbed courts’ most powerful remedial tool—injunctive relief. As a result, early scholarship predicted that injunctive practice would become a useless tool in prison reform litigation.

Instead, twenty-five years after Congress passed …

American Punishment And Pandemic, Danielle C. Jefferis

Faculty Scholarship

Many of the sites of the worst outbreaks of the disease caused by the novel coronavirus (COVID-19) are America’s prisons and jails. As of March 2021, the virus has infected hundreds of thousands of incarcerated people and well over two thousand have died as a result contracting the disease caused by the virus. Prisons and jails have been on perpetual lockdowns since the onset of the pandemic, with family visits suspended and some facilities resorting to solitary confinement to mitigate the virus’s spread, thereby exacerbating the punitiveness and harmfulness of incarceration. With the majority of the 2.3 million people incarcerated …

Anomalous Anatomies: How The Tsa Should Screen For Transgender People, Karissa J. Kang, John M. Kang

Faculty Scholarship

A transgender person faces obstacles trying to negotiate a gender-binary world. Going through a TSA checkpoint is no different. A substantial number of transgender persons have reported that they were detained and examined because they were transgender.1 Why this situation persists and what policy reforms should be implemented to alleviate it are the subjects of this Essay. This Essay is devoted mainly to the theme of transgender rights, rather than race, a central theme of the symposium in which this Essay appears. Given the relatively small pool of transgender individuals for whom data is available, this Essay is unable to …

Medical Cannabis And The Age Of Majority, Katharine B. Silbaugh

Faculty Scholarship

This Essay considers whether commercial cannabis retailers are adequately constrained in the sale of cannabis to 18- to 21-year-olds. It examines the intersection of the medical cannabis market, recreational cannabis market, and underlying status law regulating late adolescents aged 18 to 21. Because the age of majority licenses full medical decision-making, an 18-year-old can access medical cannabis but not recreational cannabis or alcohol. This Essay proceeds on the assumption that medical cannabis is a construct that has eased the process of achieving a legalized commercial cannabis market. The ambiguity around medical claims is comfortable in the libertarian soil of cannabis …

Marijuana Legalization And The Role Of The Massachusetts Legislature, Sean J. Kealy

Faculty Scholarship

The public is often frustrated when Congress or their state legislature is not responsive to their policy priorities. This was especially true during the effort to legalize marijuana in Massachusetts. The legislature consistently refused to take up the issue despite public support. Legalization advocates ultimately bypassed the legislature by turning to the ballot-initiative process on three occasions: first to decriminalize possession of small amounts of marijuana, then to legalize medical marijuana, and most recently to legalize recreational marijuana. After the electorate legalized recreational marijuana, the legislature further frustrated advocates, first by delaying implementation of key parts of the law and …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Faculty Scholarship

Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice …