Digital Commons Network^™

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

Faculty Scholarship

The study of "Rights Dynamism," exemplified in Timothy Zick' s new book on the First Amendment's relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call "Doctrinal Dynamism." Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another's doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests …

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

Federal Criminal Risk Assessment, Brandon L. Garrett

Faculty Scholarship

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies. However, in federal criminal law, risk assessments have been only haltingly adopted. Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion. Risk assessment instruments are currently used in federal courts pretrial and postconviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date. The adoption of the First Step Act, which has the ambition to transform the federal prison system through the use of risk instruments, has the potential to introduce a more …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

Faculty Scholarship

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

Mixed-Income Communities As A Strategic Lever To Impact Health Equity: Lessons From The Field And Implications For Strategy And Investment, Mark L. Joseph

Faculty Scholarship

This report provides an overview of the current state of knowledge about how mixed-income community interventions could help achieve greater health equity. The report culminates an eighteen-month inquiry on mixed-income communities and health and focuses on implications from profi les of fi ve mixed-income community interventions that have a strategic emphasis on improving health and wellness.

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

The Inconsentability Of Facial Surveillance, Evan Selinger, Woodrow Hartzog

Faculty Scholarship

Governments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions.

In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent …

Foreign Affairs Prosecutions, Steven Arrigg Koh

Faculty Scholarship

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Balanced Liberty: Justice Kennedy's Work In Criminal Cases, Rory K. Little

Faculty Scholarship

No abstract provided.

The Law Against Family Separation, Carrie F. Cordero, Heidi Li Feldman, Chimene Keitner

Faculty Scholarship

Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President's pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The "specificity requirement" means that vague and broadly worded pardons are invalid. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper's argument rests on an originalist understanding of the constitutional text, …

A Common Law Perspective On The Supreme Court And Its Functions, Richard L. Marcus

Faculty Scholarship

The text presents different attributes of the Supreme Court in common law and civil law systems. The author claims that the question of design and function of a supreme court, while important, is no more significant than the issue of its institutional status and evolution, i.e. something one could refer to as “legal culture”. Neither the “common law camp”, nor the “civil law camp” turns out to be monolithic in this regard. The distinctive history of the US Supreme Court is presented through the perspective of its statutory and procedural supremacy, as well as its power of constitutional adjudication. The …

Evidence On Fire, Jennifer D. Oliva, Valena E. Beety

Faculty Scholarship

Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now- debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy …

Eroding Immigration Exceptionalism: Administrative Law In The Supreme Court's Immigration Jurisprudence, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

Farewell To The Felonry, Alice Ristroph

Faculty Scholarship

No abstract provided.

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 2, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

Legalization of marijuana burdens the States with the responsibility of (a) monitoring the physical flows of marijuana through the supply chain (making sure the marijuana does not enter inter-state commerce; making sure it stays out of the hands of minors, etc.), and (b) monitoring the fiscal flows (making sure the proceeds of marijuana production do not end up in criminal hands).

The type of controls favored by the states are track and trace (TAT), or seed-to-sale (STS) systems. These systems are reasonably complex, as well as technology-intensive. Nevertheless, there are questions about whether they are adequate to the enforcement needs. …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 3, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

This is the third of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.

This article focuses on cyber-attacks on the main commercial chain, and the use of a private blockchain using HyperLedger Fabric as a platform.

This fraud is a direct, criminal attack; an attack designed to destroy/corrupt records of marijuana inventory and plant tags throughout the supply chain. The attack allows legalized marijuana to escape the system and be sold on the black market. A …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 1, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

On January 4, 2018, the Trump Administration through Attorney General Sessions rescinded an Obama-era policy1 that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases under the federal Controlled Substances Act,2 as well as under the Bank Secrecy Act.3 Federal law is at odds with state law in the majority of states on the legalization and subsequent state taxation of marijuana.4 Twenty-eight states and the District of Columbia have at least partially legalized marijuana. Eight of these states have legalized both medicinal and recreational use.5 With limited exceptions, legalized sales of marijuana are taxed.

We …

287(G) Agreements In The Trump Era, Huyen Pham

Faculty Scholarship

Articulated as a priority in President Trump’s executive orders, his administration has forcefully pushed to sign more 287(g) agreements (and more aggressive forms of those agreements) with local law enforcement agencies (LEAs). In the summer of 2017, the administration signed eighteen new agreements in the state of Texas alone. At the end of 2017, there were at least thirty-eight other LEAs interested in joining the program. Once these agreements come online, the result will be more local law enforcement officers deputized to enforce immigration laws than have ever existed in the history of the 287(g) program.

What are the implications …

Stays, Portia Pedro

Faculty Scholarship

After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …

Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen

Faculty Scholarship

We examined medico-legal collaboration regarding dangerous sex offenders where state legislators have adopted statutes that determine the criteria for commitment to and discharge from civil commitment programs. The application of these statutes relies on medical diagnoses of pathologies such as paraphilia, anti-social personality disorder, and pedophilia along with prognoses for cure or recidivism. In our study, we examined court opinions from commitment hearings and observed a trial in federal court on the constitutionality of these commitments. We found that one result of this medico-legal collaboration is the marginalization or othering of sex offenders by essentializing, dividing, shaming, and impeaching them. …

Brief Of The Legal Aid Society, Bronx Defenders, Brooklyn Defender Services, Community Service Society Of New York, Center On The Administration Of Criminal Law At New York University School Of Law, Center On Race, Law And Justice At Fordham University Law School, Katal Center For Health, Equity, And Justice, And Brooklyn Community Bail Fund In Support Of Plaintiff-Appellant, Zohra Ahmed, Cynthia Conti-Cook

Faculty Scholarship

In upholding the constitutionality of the officers’ prolonged detention of Mr. Vargas, the lower court inaccurately assumed that Mr. Vargas was labeled a “transit recidivist” by the New York City Police Department (NYPD) as a result of either an open warrant or a prior conviction.3 The amici submit this brief to correct this misconception.4 The NYPD actually labels New York subway riders “transit recidivist” based on a much broader, constitutionally compromised database that includes prior arrests and summons that have been dismissed, declined prosecution or otherwise terminated in favor of the accused.

The History Of Misdemeanor Bail, Shima Baradaran Baughman

Faculty Scholarship

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the …

Borders, Bans, And Courts In The European Union, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Getting There: On Strategies For Implementing Criminal Justice Reform, Susan Herman

Faculty Scholarship

No abstract provided.