Digital Commons Network^™

Posthumous Organ Donation As Prisoner Agency And Rehabilitation, Amanda Seals Bersinger, Lisa Milot

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Unlike U.S. citizens generally, who are encouraged to become organ donors through drivers' license designations, advance directives, and state registries, in most instances inmates are barred from donating their organs until release.

To date, the scholarship in favor of allowing inmates to donate their organs has largely focused on the benefit these donations could offer patients languishing on organ transplant lists, while objections center on the vulnerability of the imprisoned potential donors and their inability to make decisions freely. A donor-focused case for donation, however, is missing in this debate. This Article fills that gap by setting out the philosophical …

Access To Justice: What To Do About The Law Of Wills, Iris Goodwin

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No abstract provided.

Tennessee Workers: Dying For A Job, Fran Ansley

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No abstract provided.

Beyond The Metatheoretical: Implicit Bias In Law Review Article Selection, Michael J. Higdon

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Every year, law review editors around the country are forced to select the authors, out of the hundreds who annually submit articles, to whom they will extend offers of publication. For law review editors, these are stressful times given 1) the short time frame they have for reading and assessing this ever growing number of submissions and 2) the fear that a poor selection on their part could potentially embarrass both themselves and their law schools. Although legal scholars sometimes forget about article selection from the perspective of the hurried, stressed law review editor, everyone in the academy should be …

A Comparison Between The American Markets For Medical And Legal Services, Benjamin H. Barton

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America’s access to justice woes are paradoxical in a number of ways. We have more lawyers than every country, except for India, and more lawyers per capita than every country, except for Israel. We spend more on law as an absolute amount or as a percentage of GDP than any other country. At the high end, our so-called “Big Law,” we provide the best and most lucrative services in the world. Yet, we barely provide any legal services to the very poor, and American lawyers cost too much for the working poor or even the middle class. We graduate so …

Looking Intersectionally And Seeing Structural Bias [Reviews], Wendy A. Bach

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No abstract provided.

Juvenile Justice In Global Perspective: From Chicago To Shanghai And Back To First Principles, David S. Tanenhaus

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No abstract provided.

‘Let’S Change The Law’: Arkansas And The Puzzle Of Juvenile Justice Reform In The 1990s, David S. Tanenhaus, Eric C. Nystrom

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No abstract provided.

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

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In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that "healing" or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in …

Untangling The Web: Juvenile Justice In Indian Country, Addie C. Rolnick

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The juvenile justice system in Indian country is broken. Native youth are vulnerable and traumatized. They become involved in the system at high rates, and they are more likely than other youth to be incarcerated and less likely to receive necessary health, mental-health, and education services. Congressional leaders and the Obama administration have made the needs of Indian country, especially improvement of tribal justice systems, an area of focus in recent years. The release of two major reports—one from a task force convened by the Attorney General to study violence and trauma among Native youth and the other from a …

From Victims To Litigants, Elizabeth L. Macdowell

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This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors …

Models Of Invisibility: Rendering Domestic And Other Gendered Violence Visible To Students Through Clinical Law Teaching, Elizabeth L. Macdowell, Ann Cammett

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The proliferation of university courses about domestic violence includes clinical courses in law schools in which students represent victims in their legal cases. This essay advocates for a broader approach to teaching about the problem. Using examples from their clinic cases, the authors show how teachers can overcome pedagogical challenges and render domestic and other forms of gendered violence, including state and community violence, more visible to students by intentionally raising and placing it within larger frameworks of structural inequality. In this way, students learn to identify and address gendered violence even when it is not the presenting problem.

Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick

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The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for …

Children, Diane Marie Amann

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This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

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After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

Impunity For The Incorrigible Psychopath?: Neurobiological Abnormalities Do Not Exempt Psychopaths From Criminal Responsibility, Shanée Brown

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Current research slowly unveils the mystery of the psychopath and his or her criminal behavior. Psychopathy is a developmental disorder defined by antisocial behavior and deficits in emotional responsiveness. This disorder results in both instrumental and reactive aggression. Instrumental aggression is also referred to as predatory or proactive aggression. Elevated levels of instrumental aggression distinguish psychopathy from other psychiatric disorders. Reactive aggression occurs as an impulsive reaction to a threatening or frustrating event. Instrumental aggression, on the other hand, involves purposeful behavior to achieve a desired goal (e.g., mugging to obtain money). Calculation or willful deliberation accompanies instrumental aggression. Unlike …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

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On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Securing Child Rights In Time Of Conflict, Diane Marie Amann

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Each term in the title of this essay seems simple, yet provides much food for analytical thought. The essay thus explores: what is “conflict,” and whether there is a “time” when it is not present; who is a “child”; whether and to what extent children enjoy “rights”; and, finally, how local, national, and international regimes go about “securing” those rights. The essay – based on a talk given at the 2015 International Law Weekend in New York – concludes with a glance at a new potential avenue for child security: the Sustainable Development Goals which the U.N. General Assembly adopted …

Black Contemporary Social Movements, Resource Mobilization, And Black Musical Activism, Andrea L. Dennis

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In the last few years a grassroots social movement has emerged from the Black community. This movement aims to eliminate police and vigilante violence against Blacks nationwide. Blacks in America have long been subjected to this violence, and the issue has recently captured the country’s attention. Multiple groups are pressing for change, including Ferguson Action, Black Lives Matter, Say Her Name, and the leaderless social media effort organized by DeRay McKesson and Johnetta Elzie, to name a few. These fledgling activist groups have already experienced some success, garnering public attention and government response. As it currently stands, this nascent civil-rights …

In Defense Of The Devil’S Advocate, Lonnie T. Brown

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mong the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

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Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

Review Of Alaska Mental Health Statutes, Sara Gordon, Melissa Piasecki, Gil Kahn, Dawn Nielsen

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This report identifies key statutory provisions that we recommend be amended, a description of our findings based on interviews with stakeholders, legislative history of the Alaska statutes, reviews of national best practices and, where applicable, information about emerging areas in national mental health law for Alaska to consider in creating new law. Our recommendations are based in large part on significant advances in law and medicine in the understanding and treatment of mental illness that have occurred in the years since Alaska last made significant and substantive reforms to its criminal and civil mental health statutes. It is important to …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

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Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

Locked Up: Fear, Racism, Prison Economics, And The Incarceration Of Native Youth, Addie C. Rolnick

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Native youth are disproportionately incarcerated, often for relatively minor offenses. One potential solution is to move more Native youth out of federal and state courts and invest in tribal juvenile justice systems. Tribal systems are assumed to be less punitive than nontribal ones, so greater tribal control should mean less incarceration. Little is known, however, about the role of incarceration in tribally run systems. This article examines available information on Native youth in tribal juvenile justice systems from 1998 to 2013. At least sixteen new secure juvenile facilities were built to house youth under tribal court jurisdiction, with federal investment …

“Law &” Meets “Law As”, Linda L. Berger

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Prof. Berger reviews The Handbook of Law and Society, edited by Austin Sarat and Patrick Ewick.

Policing And The Clash Of Masculinities, Ann C. Mcginley

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In 2014 and 2015, the news media inundated U.S. society with reports of brutal killings by police of black men in major American cities. Unfortunately, police departments do not typically keep data on police killings of civilians. The data that exist do show, however, that at least for a five-month period in 2015, there was a disproportionate rate of police killings of unarmed black men.

There is no question that race and class play a key role in the nature of policing that occurs in poor black urban neighborhoods. However, the relationship between police officers and their victims is not …

Reentering Survivors: Invisible At The Intersection Of The Criminal Legal System And The Domestic Violence Movement, Courtney Cross

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Like all returning citizens, women coming home after incarceration face significant challenges to successful reentry. In addition to the collateral consequences of their criminal convictions, reentering women also encounter uniquely gendered obstacles. This Article explores one such obstacle: the relationship between women's reentry and domestic violence. Women on probation or parole who are also experiencing domestic violence too often fall into a blind spot in which the structure of community supervision pressures them to remain in unsafe homes and also punishes them when the abuse they endure interferes with their ability to comply with the conditions of their release. Because …

Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell

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Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …

Is Gay The New Asian?: Marriage Equality And The Dawn Of A New Model Minority, Stewart Chang

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In this Article, Professor Chang analyzes the historic role of family in the politics of exclusion in the United States, evaluates the ways in which the stereotyping of Asian Americans as a model minority has perpetuated these politics, and warns against the possibility of a similar fate for gay and lesbian Americans. As a model minority, Asian Americans have been set as a standard against which other minority groups, particularly African Americans, are measured. Around the same time Asians were being extolled for their hard work and family values, Congress released the Moynihan report on the problem of broken families …

Enforcing Immigration Equity, Jason A. Cade

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Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for …