Digital Commons Network^™

Called "Out" At Home: The One Strike Eviction Policy And Juvenile Court, Wendy J. Kaplan, David Rossman

Faculty Scholarship

One of the harshest collateral consequences of a juvenile delinquency case is the prospect of eviction from public housing. Under the federal government’s One Strike policy, public housing authorities are encouraged to evict families for any criminal act by their children, no matter how trivial. This politically popular policy creates more social ills than it cures. There is no evidence that it reduces crime in public housing, but there is abundant evidence that it makes families homeless, puts children out on the street, leads police departments to breach laws concerning confidentiality of juvenile proceedings, and creates conflicts of interest between …

Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

This article is based on the Interim Report, Creditor Claims in Arbitration and in Court, issued in November 2009 by the Searle Civil Justice Institute's Consumer Arbitration Task Force. It seeks to compare the outcomes of debt collection arbitrations to the outcomes of debt collection cases in court to help in evaluating arbitration as a means of resolving consumer disputes. The arbitration cases examined are debt collection cases administered by the American Arbitration Association (AAA) as part of its consumer arbitration docket, supplemented by cases brought by a single debt buyer as part of a consumer debt collection program administered …

Network Accountability For The Domestic Intelligence Apparatus, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Criminal Law In The Shadow Of Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Can They Do That To Me?! Does The 8th Amendment Protection Children’S Best Interests?, Maryam Ahranjani

Faculty Scholarship

Children are our nation’s most valuable resource and also arguably our most vulnerable population. Recent decisions by the Supreme Court, including Roper v. Simmons (2005), Graham v. Florida (2010), and J.D.B. v. North Carolina (2011) indicate its willingness to consider the special characteristics of children in determining their rights; but, by and large, the Court’s analysis does not hinge on the best interests of the child. Can They Do That to Me?! Does the Eighth Amendment Protect Children’s Best Interests? explores case law in the public school and juvenile justice system arenas and concludes that a child-centered approach to punishment …

Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield

Faculty Scholarship

This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay.

The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, …

Tribal Court Convictions And The Federal Sentencing Guidelines: Respect For Tribal Courts And Tribal People In Federal Sentencing, Barbara L. Creel

Faculty Scholarship

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendants criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an 'upward departure' to increase the Native defendant's overall federal sentence. Washburn's proposal seeks to gain 'respect' for tribal courts, based upon a premise that tribal convictions must be afforded …

Guns, Inc.: Citizens United, Mcdonald, And The Future Of Corporate Constitutional Rights, Darrell A. H. Miller

Faculty Scholarship

The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United …

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana enforcement. These …

An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt

Faculty Scholarship

Previous research suggests that mass incarceration in the United States may have contributed to lower rates of violent crime since the 1990s but, surprisingly, finds no evidence of an effect of imprisonment on violent crime prior to 1991. This raises what Steven Levitt has called “a real puzzle.” This study offers the solution to the puzzle: the error in all prior studies is that they focus exclusively on rates of imprisonment, rather than using a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel-data regressions over the 68-year period from 1934 to 2001 and controlling for …

Purple Haze, Clare Huntington

Faculty Scholarship

It takes only a glance at the headlines every political season – with battles over issues ranging from abortion and abstinence-only education to same-sex marriage and single parenthood – to see that the culture wars have become a fixed feature of the American political landscape. The real puzzle is why these divides continue to resonate so powerfully. In Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone offer an ambitious addition to our understanding of this puzzle, illustrating pointedly why it is so hard to talk across the political divide. In a …

Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares

Faculty Scholarship

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …

How Constitutional Theory Matters, Jamal Greene

Faculty Scholarship

It is impossible to understand the present moment in progressive constitutionalism without engaging a stock narrative given iconic articulation more than a decade ago by originalist scholar Randy Barnett. According to this narrative, conservatives in the 1980s, prodded by Edwin Meese III's Justice Department, rallied around originalism, and particularly "original intentions" originalism, as a politically congenial and intellectually satisfying approach to constitutional interpretation. They were defeated in the courts of academic and political opinion due in part to a series of unanswerable criticisms from liberal legal scholars such as Paul Brest and H. Jefferson Powell, and in part to the …

Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno

Faculty Scholarship

This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. …

Boumediene, Munaf, And The Supreme Court's Misreading Of The Insular Cases , Andrew Kent

Faculty Scholarship

In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process …

Prosecutors' Ethical Duty Of Disclosure In Memory Of Fred Zacharias , Bruce A. Green

Faculty Scholarship

In the spring of 2009, I sent Fred Zacharias an e-mail to let him know that the American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility, on which I was serving, was working on an opinion on prosecutorial ethics and to suggest that once it was published, the opinion might be fodder for our next article. Over the preceding decade, Fred and I had coauthored five articles on the regulation of prosecutors,' and various others on the regulation of lawyers in general, but at that time, we had no work in progress and had been out of touch …

Localities As Equality Innovators, Robin A. Lenhardt

Faculty Scholarship

This Article thus argues that instead of regarding cities and localities that, like Seattle and Louisville, try to develop serious solutions to existing racial disparities as "bad cities" no different from those whose notorious policies spurred the civil rights movement of the 1950s and 1960s, we should be regarding them as potential "equality innovators.” Their on-the-ground experience with the realities of race and its operation in the twenty-first century arguably places them in a better position than courts to develop innovative approaches to the structural racial inequities with which so many municipalities must grapple. Existing doctrine limits dramatically the ability …

Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Lawyering In A Vacuum, James A. Cohen

Faculty Scholarship

No abstract provided.

Mission Creep In Military Lawyering, Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

The Role Of Reporter For A Law Project, Rory K. Little

Faculty Scholarship

No abstract provided.

Aba's Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little

Faculty Scholarship

No abstract provided.

Comparative International Law, Ugo Mattei

Faculty Scholarship

No abstract provided.

Dainty Hands: Perceptions Of Women And Crime In Sherlock Holmes Stories, Hadar Aviram

Faculty Scholarship

No abstract provided.

Inside Out, Elizabeth F. Emens

Faculty Scholarship

Russell Robinson has done it again. With Masculinity as Prison: Sexual Identity, Race, and Incarceration, he has given us another provocative Article, which illuminates a phenomenon in the world and, indirectly, in ourselves. The Article represents much of what generally makes Robinson’s work so compelling. First, he writes about tremendously complex subjects and attends to their many complexities in remarkably lucid prose. Second, despite his critical perspective, he does not hesitate to make prescriptive arguments.

In this Article, he even ventures into the hallowed ground of constitutional argument, something he has not done since his first article on race-based …

In Memoriam: William J. Stuntz, Pamela S. Karlan, Michael J. Klarman, Martha Minow, Daniel C. Richman, Robert E. Scott, David Skeel, Carol Steiker

Faculty Scholarship

Bill made a lot of errors in his articles. I know that, because he told me so, often in graphic detail, sometimes years after writing them; sometimes days. As anyone familiar with Bill or his work knows, this sort of harsh self-criticism bespeaks not any laxity or insouciance on Bill’s part, or even a false modesty, but rather an intense commitment to intellectual rigor, and (even more astounding for a legal academic) actually “getting it right.”

Deterring Serious And Chronic Offenders, Thomas A. Loughran, Alex R. Piquero, Jeffrey A. Fagan, Edward P. Mulvey

Faculty Scholarship

This chapter examines ways of deterring serious and chronic offenders based on evidence from the Pathways to Desistance Study, which addresses the issue of perceptions of deterrence and looks into the mechanisms of deterrence for serious offenders. After a brief overview of the Pathways study, the chapter reviews empirical evidence that demonstrates the rationality of high-risk adolescents regarding involvement in crime. It argues that offenders take into account rational-choice perceptions in their offending decisions and goes on to discuss the elasticity and malleability of these perceptions, and whether adolescent offenders act differently when they change risk and cost perceptions. It …

Building Pathways Of Possibility From Criminal Justice To College: College Initiative As A Catalyst Linking Individual And Systemic Change, Susan P. Sturm, Kate Skolnick, Tina Wu

Faculty Scholarship

Across the United States, communities, especially marginalized and low income communities, face challenges resulting from the “school-to-prison pipeline”—a continuum of conditions increasing the probability that people from such marginalized communities, particularly black men, will find themselves in prison rather than college.1 Dismantling this pipeline has become a significant national focus of advocates and policy makers. In New York City, a network has emerged in the last ten years to focus on building a new pipeline from criminal justice to college. This network focuses on rebuilding the lives of the over 70 thousand people who have fallen into the school-to-prison pipeline. …

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This Article assesses three major preemption decisions from the 2008-2009 Term – Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n – for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' …

Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott

Faculty Scholarship

This Essay is a comparative economic analysis of the disparate doctrines governing the good faith purchase of stolen or misappropriated goods. We argue that prior treatments have misconceived the problem. An owner will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller's title if faced with the loss of the goods. An owner and a buyer cannot both be faced with the full loss, however. This presents a problem of "double moral hazard" and it cannot be solved in a first-best efficient …