Digital Commons Network^™

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Blackness As Disability?, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

No abstract provided.

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.

The Criminal Jury, Moral Judgments, And Political Representation, Youngjae Lee

Faculty Scholarship

Was the sexual act consensual? Did the defendant have a reasonable belief that he was in imminent danger of death by an attacker? Did the police use excessive force? Did the defendant act in a heinous or cruel manner? Did the defendant act with depraved indifference to human life? These are some of the questions that criminal juries encounter. Determinations of such questions involve a combination of factual and moral questions, both questions about what happened and questions about the evaluative significance of what happened. This feature of the criminal jury—that the jury routinely decides normative questions—is frequently noted but …

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.

Pathways To Delinquency And Substance Use Among African American Youth: Does Future Orientation Mediate The Effects Of Peer Norms And Parental Monitoring?, Dexter R. Voisin

Faculty Scholarship

The following study assessed whether future orientation mediated the effects of peer norms and parental monitoring on delinquency and substance use among 549 African American adolescents. Structural equation modeling computed direct and indirect (meditational) relationships between parental monitoring and peer norms through future orientation. Parental monitoring significantly correlated with lower delinquency through future orientation (B = −.05, standard deviation =.01, p <.01). Future orientation mediated more than quarter (27.70%) of the total effect of parental monitoring on delinquency. Overall findings underscore the importance of strengthening resilience factors for African American youth, especially those who live in low-income communities.

Project Ngage: Results Of A Randomized Controlled Trial Of A Dyadic Network Support Intervention To Retain Young Black Men Who Have Sex With Men In Hiv Care, Dexter R. Voisin

Faculty Scholarship

HIV-positive young black MSM (YBMSM) experience poor outcomes along the HIV care continuum, yet few interventions have been developed expressly for YBMSM retention in care. Project nGage was a randomized controlled trial conducted across five Chicago clinics with 98 HIV-positive YBMSM aged 16–29 between 2012 and 2015. The intervention used a social network elicitation approach with index YBMSM (n = 45) to identify and recruit a support confidant (SC) to the study. Each index-SC dyad met with a social worker to improve HIV-care knowledge, activate dyadic social support, and develop a retention in care plan. Each index and SC also …

Rape Is Trespass, Anita Bernstein

Faculty Scholarship

No abstract provided.

Bathroom Laws As Status Crimes, Stephen Rushin, Jenny E. Carroll

Faculty Scholarship

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …

Data Collection And The Regulatory State, Ahmed Ghappour

Faculty Scholarship

The following remarks were given on January 27, 2017 during the Connecticut Law Review’s symposium, “Privacy, Security & Power: The State of Digital Surveillance.” Hillary Greene, the Zephaniah Swift Professor of Law at the University of Connecticut School of Law, offered introductory remarks and moderated the panel. The panel included Dr. Cooper, Associate Professor of Law and Director of the Program on Economics & Privacy at Antonin Scalia Law School at George Mason University, Professor Ghappour, Visiting Assistant Professor at UC Hastings College of the Law, Attorney Lieber, Senior Privacy Policy Counsel at Google, and Dr. Wu, Professor of Law …

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

Towards An International Right To Claim Innocence, Brandon L. Garrett

Faculty Scholarship

In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered …

The Constitution Of Police Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Alternatives To Immigration Detention, Fatma E. Marouf

Faculty Scholarship

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

Redefining Parental Rights: The Case Of Corporal Punishment, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Toward A Critical Race Theory Of Evidence, Jasmine Gonzales Rose

Faculty Scholarship

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of …

Brief Amici Curiae On Behalf Of International And Constitutional Law Experts In Support Of Petition For Certiorari, Al Bahlul V. United States , 840 F.3d 757 (D.C. Cir. 2016) (En Banc), Robert D. Sloane, Foley Hoag Llp

Faculty Scholarship

Amici curiae, legal experts in international and constitutional law, believe that a majority of the en banc panel in Bahlul v. United States, 840 F.3d 757 (D.C. Cir. 2016) (en banc), mistakenly affirmed Ali Hamza Ahmad Suliman al Bahlul’s conviction by a military commission for a non-international war crime. The main concurring opinion in that case misconceived how international law defines the jurisdiction of law-of-war military commissions. As amici argue below, it is the Constitution—not international law—that limits the jurisdiction of lawof-war military commissions.

Race, Policing, And Technology, Bennett Capers

Faculty Scholarship

No abstract provided.

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

What The Future Holds: The Changing Landscape Of Federal Indian Policy, Kevin Washburn

Faculty Scholarship

Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, …

Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful drugs. This Article presents a theory of “gateway crimes,” which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People …

Too Vast To Succeed, Miriam Baer

Faculty Scholarship

No abstract provided.

Bail Nullification, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Pricing The Fourth Amendment, Miriam Baer

Faculty Scholarship

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Faculty Scholarship

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …

Policing The Boundaries Of Whiteness: The Tragedy Of Being “Out Of Place” From Emmett Till To Trayvon Martin, Angela Onwuachi-Willig

Faculty Scholarship

This Article takes what many view as an extraordinary case about racial hatred from 1955, the Emmett Till murder and trial, and analyzes it against the Trayvon Martin killing and trial outcome in 2012 and 2013. Specifically, this Article exposes one important, but not yet explored similarity between the two cases: their shared role in policing the boundaries of whiteness as a means of preserving the material and the psychological benefits of whiteness. This policing occurred in a variety of forms, including: (1) maintaining white racial separation; (2) facilitating cross-class, white racial solidarity; (3) articulating blackness, and specifically black maleness, …

Testing Three Pathways To Substance Use And Delinquency Among Low-Income African American Adolescents, Dexter R. Voisin

Faculty Scholarship

Objective Mounting literature suggests that parental monitoring, risky peer norms, and future orientation correlate with illicit drug use and delinquency. However, few studies have investigated these constructs simultaneously in a single statistical model with low income African American youth. This study examined parental monitoring, peer norms and future orientation as primary pathways to drug use and delinquent behaviors in a large sample of African American urban adolescents. Methods A path model tested direct paths from peer norms, parental monitoring, and future orientation to drug use and delinquency outcomes after adjusting for potential confounders such as age, socioeconomic, and sexual orientation …