Digital Commons Network^™

Federal Courts' Supervisory Authority In Federal Criminal Cases: The Warren Court Revolution That Might Have Been, Bruce A. Green

Faculty Scholarship

No abstract provided.

There Isn't Any Dumpster, Jill C. Engle

Faculty Scholarship

No abstract provided.

Decarceration’S Blindspots, John F. Pfaff

Faculty Scholarship

For over a decade, my research has focused on trying to answer one simple question: how did the United States, home to about 5% of the world’s population, come to house nearly 25% of its prisoners?1 We were not always the world’s largest jailer; as recently as the 1970s, our incarceration rate was largely indistinguishable from those in other liberal democracies. Yet starting in the mid-1970s, as Figure 1 shows, that rate started to slowly—but steadily and relentlessly—grow, until by the late 2000s it rivaled and then surpassed even the rates seen in autocratic countries like Cuba and Belarus and …

Five Myths About Prison, John F. Pfaff

Faculty Scholarship

No abstract provided.

Prosecutors In The Court Of Public Opinion, Bruce A. Green

Faculty Scholarship

No abstract provided.

Latin American Racial Equality Law As Criminal Law, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett

Faculty Scholarship

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, …

The Hidden Costs Of Dissent, Robert L. Tsai

Faculty Scholarship

This essay appears as part of a symposium dedicated to the book, ROBERT L. TSAI, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION (W.W. Norton 2019), and published in CONSTITUTIONAL COMMENTARY. In it, I jointly respond to two separate review essays by Franita Tolson and Nelson Tebbe. First, I emphasize that the book presents not a comprehensive theory of equality, i.e., what egalitarianism should look like under ideal conditions, but instead an account of egalitarian ethics and a menu of work-arounds that can be useful to promote egalitarian goals under more trying circumstances. Second, as to the concern that over-reliance …

Trump, Gender Rebels, And Masculinities, Dara Purvis

Faculty Scholarship

Since the inauguration of President Trump, most of his Administration’s actions have been sharply conservative: notably, his efforts to ban transgender Americans from military service. There have been exceptions, however, such as proposals to create support for paid parental leave, an issue previously championed by Democrats.

This seeming contradiction of progressive and regressive policies can be reconciled by viewing the Trump Administration through the lens of masculinities theory. Hegemonic masculinity depends upon sharp differentiation between “real” men and everyone else, the latter occupying places in a hierarchy far below men. In this reading, Trump’s version of parental support makes sense: …

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 …

Data Generated By New Technologies And The Law: A Guide For Massachusetts Practitioners, Andrew Sellars

Faculty Scholarship

This brief paper, created as part of a training on new technologies and evidence for MCLE New England, outlines the standards used to compel disclosure of information under the Stored Communication Act, and reviews the types of data stored on various consumer devices and their likely custodians, as well as cases and notes relevant to each devices. The paper serves as a quick introduction and checklist for those considering gathering information from these devices in the course of investigations in Massachusetts. The devices outlined include cell phones, social media platforms, secure messaging services, fitness trackers, home assistant devices (or "smart …

When Law Frees Us To Speak, Danielle K. Citron, Jonathon W. Penney

Faculty Scholarship

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

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 …

Broken Experimentation, Sham Evidence-Based Policy, Kristen Underhill

Faculty Scholarship

Evidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where …

Police Contact And The Legal Socialization Of Urban Teens, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Contemporary American policing has routinized involuntary police contacts with young people through frequent, sometimes intrusive investigative stops. Personal experience with the police has the potential to corrode adolescents’ relationships with law and skew law-related behaviors. We use the Fragile Families and Child Wellbeing Study to estimate how adolescents’ experiences with the police shape their legal socialization. We find that both personal and vicarious police contact are associated with increased legal cynicism. Associations are present across racial groups and are not explained by teens’ behaviors, school settings, or family backgrounds. Legal cynicism is amplified in teens reporting intrusive contact but diminished …

Fair And Impartial Adjudication, Thomas W. Merrill

Faculty Scholarship

Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.

A dispute arising under …

Exemplary Legal Writing 2018: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

In an age of mass incarceration, it is not so easy to find good in the U.S. criminal justice system. But The Secret Barrister makes you appreciate the better aspects of our system by showing just how dysfunctional the corresponding English system has become. The book — written by an anonymous junior barrister — is a devastating, sometimes hilarious, and frequently heart-breaking account of how the criminal justice system in England and Wales is not only broke financially but broken in its ability to deliver justice, whether to prosecutors, defendants, victims, or the public.

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 …

Reconstituting The Future: An Equality Amendment, Catherine A. Mackinnon, Kimberlé W. Crenshaw

Faculty Scholarship

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

The Present Crisis In American Bail, Kellen R. Funk

Faculty Scholarship

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …

Please Tweet Responsibly: The Social And Professional Ethics Of Public Defenders Using Client Information In Social Media Advocacy, Nicole Smith Futrell

Faculty Scholarship

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan

Faculty Scholarship

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied …

Investigating Potentially Unlawful Death Under International Law: The 2016 Minnesota Protocol, Christof Heyns, Stuart Casey-Maslen, Toby Fisher, Sarah Knuckey, Thomas Probert, Morris Tidball-Binz

Faculty Scholarship

Across every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the …

Driving Toward Autonomy? The Fbi In The Federal System, 1908-1960, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This paper explains the growth of the FBI (“Bureau”) in the United States at a time when criminal justice was largely a local matter by reframing the criminal justice “(eco)system” in terms of informational economy, rather than jurisdictional authority. It argues that the Bureau came to occupy a key position in the national law enforcement ecosystem by providing an informational infrastructure that enabled it to cultivate relationships with local police agencies. This history offers two insights about the nature of American state and federalism in the twentieth century. First, the Bureau’s particular strategy for enlarging its capacity beyond its small …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

One Of The Good Guys: The Making Of A Justice – Reflections On My First 94 Years, Jamal Greene

Faculty Scholarship

John Paul Stevens’s first published judicial opinion was a Dissent. He joined the Seventh Circuit a few days after the court issued its opinion in Groppi v. Leslie, and dissented soon afterward when the court upheld that decision on rehearing. Wilbur Pell, who until Stevens joined was the only Republican among the Seventh Circuit’s seven active judges, wrote both Groppi opinions. Yet Stevens, brand new to the court, dissented from Pell’s opinion on rehearing.

There was no reason to think Father Groppi, who was arrested for leading a demonstration that interrupted the Wisconsin Assembly’s work, was innocent of legislative …

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …