Digital Commons Network^™

Seeing The Whole Together Through Relational Mapping: A Method For Engaging In Complex Systems Change, John Paul Stephens

Faculty Scholarship

Complex global challenges cut across organizational and sectoral boundaries, increasing calls for holistic responses. Seeing the whole across diverse stakeholders is challenging for participants in complex systems, yet doing so is essential for engaging effectively in systems change. A promising new method known as relational mapping, based on relational coordination theory, has been used to facilitate complex systems change. Here, we propose that relational mapping can be applied to help participants (1) see the whole in relation to the parts, (2) share their explicit and tacit knowledge, (3) engage in dialogue across distinct perspectives supported by the map as a …

Critical Race Theory As Legal Epistemic Justice, Jasmine Gonzales Rose

Faculty Scholarship

“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few …

Negotiating Police Reform, Cynthia Alkon

Faculty Scholarship

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

Transforming The Welfare State, One Case At A Time: How Utrecht Makes Customized Social Care Work, Charles F. Sabel, Jonathan Zeitlin, Jan-Kees Helderman

Faculty Scholarship

Advanced welfare states are under pressure to customize services, promptly enough to prevent a cascade of harms. With these goals, the Netherlands in 2015 decentralized social care services to municipalities, and within municipalities to neighborhood teams in continuing contact with clients. The overall results have been disappointing. But the experience of Utrecht, the Netherlands’ fourth-largest city, has been strikingly different. By using hard-to-resolve cases to signal conflicts in rules, obstructive jurisdictional boundaries, and the shortcomings of private service providers, Utrecht is learning to customize and speed delivery of social care through incremental steps. This article explains how Utrecht’s success addresses …

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

Clinical And Sociodemographic Characteristics As Predictors For Quality Of Life In Transmasculine And Transfeminine Individuals Receiving Gender-Affirming Hormone Therapy, Saloni U. Lad, Jacob Sinopoli, Britt Conroy, Adam T. Perzynski, Juan P. Del Rincon

Faculty Scholarship

Healthcare systems and providers have increasingly acknowledged the role and impact of social determinants in overall health. However, gender-diverse individuals face persistent health disparities due to their identities. There is limited research on the impact of clinical and sociodemographic characteristics on mood and quality of life (QoL) for transgender (TG) individuals. Our study aims to understand and better elucidate social and clinical characteristics of transmasculine (TM) and transfeminine (TF) individuals and their impact on quality of life and depressive symptoms. In this cross-sectional study, 298 TF and TM individuals on gender-affirming hormone therapy (GAHT) were surveyed about their demographic characteristics …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Faculty Scholarship

No abstract provided.

Restating The Law In A Child Wellbeing Framework, Elizabeth S. Scott

Faculty Scholarship

The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, …

A Conversation On The Carceral Home, Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, James Kilgore

Faculty Scholarship

On February 8, 2024, scholars Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, and James Kilgore met virtually at the Boston University School of Law to hold a conversation on Professor Weisburd’s article, The Carceral Home, 103 B.U. L. Rev. 1879 (2023).

The Value Of Constitutional Environmental Rights And Public Trusts, John C. Dernbach

Faculty Scholarship

No abstract provided.

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

First Amendment Fetishism, John M. Kang

Faculty Scholarship

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium

• a White skinhead’s cross burning on the front lawn of a Black family’s house

• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …

Surveilling Disability, Harming Integration, Prianka Nair

Faculty Scholarship

No abstract provided.

Self-Defense And Political Rage, Erin L. Sheley

Faculty Scholarship

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

Automated Stategraft: Electronic Enforcement Technology And The Economic Predation Of Black Communities, Sonia Gipson Rankin, Melanie E. Moses, Kathy Powers

Faculty Scholarship

Automated traffic enforcement systems disproportionately impact Black communities in the United States. This Essay uncovers a troubling reality: while technologies such as speed cameras and red light cameras are often touted as tools for public safety by the National Highway Safety Transportation Administration, they disproportionately burden Black and Hispanic neighborhoods. The authors coin the term “automated stategraft” to describe this phenomenon—an insidious process that siphons financial resources from already vulnerable groups under the guise of law enforcement. In doing so, it exacerbates economic disparities and erodes trust in legal and governmental institutions.

This Essay delves into the biases inherent in …

Dead Bodies As Quasi-Persons, Ela A. Leshem

Faculty Scholarship

No abstract provided.

The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin

Faculty Scholarship

Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how AI functions. Policymakers and the public increasingly sound alarms about black box AI. A particularly pressing area of concern has been criminal cases, in which a person’s life, liberty, and public safety can be at stake. In the United States and globally, despite concerns that …

Safe Storage Laws And Self-Defense From Heller To Bruen, Joseph Blocher

Faculty Scholarship

This short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Too Young To Suspend: Ending Early Grade School Exclusion By Applying Lessons From The Fight To Increase The Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

In many respects, the evolution of juvenile court reform and school discipline reform follow similar trajectories. This Article begins by tracking those respective evolutions. Part I outlines the evolution of the juvenile court system in the United States and focuses on the fledgling system’s distinction of children from adults and its “rehabilitative ideal” that children could outgrow challenging behavior if given the right treatment and services. After a long period of “adultification” of the juvenile court in response to rising crime rates, more recent reform efforts have focused on returning to the early court’s rehabilitative model, including policies that would …

Liberty, Safety, And Misdemeanor Bail, Brandon L. Garrett, Sandra Guerra Thompson, Dottie Carmichael, David Shi, Songman Kang

Faculty Scholarship

The highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question …

Evaluating Pre-Trial Programs Using Interpretable Machine Learning Matching Algorithms For Causal Inference, Travis Seale-Carlisle, Saksham Jain, Courtney Lee, Caroline Levenson, Swathi Ramprasad, Brandon Garrett, Sudeepa Roy, Cynthia Rudin, Alexander Volfovsky

Faculty Scholarship

After a person is arrested and charged with a crime, they may be released on bail and required to participate in a community supervision program while awaiting trial. These ‘pretrial programs’ are common throughout the United States, but very little research has demonstrated their effectiveness. Researchers have emphasized the need for more rigorous program evaluation methods, which we introduce in this article. We describe a program evaluation pipeline that uses recent interpretable machine learning techniques for observational causal inference, and demonstrate these techniques in a study of a pre-trial program in Durham, North Carolina. Our findings show no evidence that …

Judging Firearms Evidence, Brandon L. Garrett, Eric Tucker, Nicholas Scurich

Faculty Scholarship

Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

Grid Reliability In The Electric Era, Joshua C. Macey, Shelley Welton, Hannah Jacobs Wiseman

Faculty Scholarship

The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To decarbonize its economy, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely on clean but intermittent renewable resources. These new resources …