Digital Commons Network^™

Suffrage Over Suffering: How Disenfranchisement Erodes The Legitimacy Of Democratic Punishment, Kendall Hollimon

CMC Senior Theses

In this thesis I analyze both retributive and consequentialist justifications for punishment to understand the foundation for disenfranchisement as punishment. I then argue that although some of these justifications can condone disenfranchisement, the practice of disenfranchising criminals damages the democratic process, thus delegitimizing the punishments that societies democratically decide to impose.

Aristotle And Mutual Accountability: A Just Theory Of Punishment, Dina Rosin

CMC Senior Theses

How can citizens of a moral community both be held accountable and be accountable for their actions and their character? What is the role of both the state and the citizen in restoring accountability? In this thesis, I apply Aristotle’s conception of virtue to Stephen Darwall and William Darwall’s mutual accountability framework for punishment. I present a theory of punishment that creates an obligation on both the state and the citizen to uphold virtue and be accountable, and posits rehabituation of character as a necessary component of maintaining mutual accountability. I then apply this theory to a paradigmatic case that …

Populism: An Exploration Into The American Case Through The Academic Literature, Data Analysis, And Fiction, Maxwell Knowles

CMC Senior Theses

The twenty-first century has seen a rise in populist leadership and rhetoric throughout the globe, with the United States standing as one powerful case. This thesis hopes to develop the “story” of populism from multiple perspectives, attempting to not only inform but change the way we approach the populist movement in America, and perhaps, the world. In Part I, I summarize and blend much of the core literature written on populism and economic change, developing the story that populism in America today has its roots in the significant techno-economic and cultural paradigmatic shifts of the 1970s. Social media and an …

Disparities Within School Discipline: An Examination Of Race, English Language Learner Status, & Suspension, Serena Boyce

All Graduate Theses, Dissertations, and Other Capstone Projects

There is much discussion in the United States about how in-school and out of school suspension negatively impacts students who are subjected to this form of exclusionary discipline. There is concern about whether there are disparities in school suspension rates between students from different subgroups and their peers. Research in this area has shown that racial/ethnic minority students, as well as students with the factors of having a low socio-economic status and being male, make some schools more likely to use school discipline than others. A question to be answered in the area of school discipline is related to if …

Supervised Release Is Not Parole, Jacob Schuman

Faculty Scholarship

The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to …

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports

Faculty Scholarship

The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …

The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker

Faculty Scholarship

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …

Prosecutors And Mass Incarceration, Shima Baradarab Baughman, Megan S. Wright

Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Nil/Tu,O Child And Family Services Society V. B.C. Government And Service Employees’ Union’ And Communications, Energy And Paperworkers Union Of Canada V. Native Child And Family Services Of Toronto, Naiomi Metallic

Articles, Book Chapters, & Popular Press

In NIL/TU,O and Native Child, the Supreme Court of Canada held that unions applying for certification to represent employees of Indigenous-run child and family agencies ought to be certified under provincial labour relations legislation. The majority in both cases applied a presumptive rule that labour relations are generally provincial matters. This presumption was not displaced by the fact that both agencies were Indigenous-run organizations. The Indigenous nature of the organizations, their clientele, staff, and governance, or their own preferences for labour regimes made no difference to the Court’s analysis.

Held: Appeals Allowed.

1.

The appeals should be allowed. Treating Indigenous …

Loss & Damage From Climate Change: A Maturing Concept In Climate Law?, Meinhard Doelle, Sara Seck

Articles, Book Chapters, & Popular Press

In this article we examine legal perspectives on recovery for harm caused by climate related loss and damage. We start by discussing the meaning of loss and damage, and its relationship to climate mitigation and adaptation. We then consider, at a conceptual level, how those harmed by loss and damage from human induced climate change may pursue remedies against those who have contributed to the harm suffered.

Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine. In this article, the authors …

Solitary Confinement Continues In Canada Under A Different Name, Adelina Iftene

Articles, Book Chapters, & Popular Press

Abusive uses of Structured Intervention Units and the Correctional Service’s conduct mean Parliament must get rid of SIUs or adopt Senate amendments.

Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine.

In this article, the authors …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

Gladue At Twenty: Gladue Principles In The Professional Discipline Of Indigenous Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In the wake of the Truth and Reconciliation Commission, the legal profession and its regulators have focused on the training and education of lawyers and law students, particularly in “intercultural competency,” as emphasized in Calls to Action 27 and 28.9 For example, in 2018 the Advocates’ Society, the Indigenous Bar Association, and the Law Society of Ontario jointly published a Guide for Lawyers Working with Indigenous Peoples, which observed—among other things—that “there is no such thing as a culturally neutral practice of law.” However, this training and education focus is important but incomplete: The journey toward reconciliation will also involve …

Unh Students’ Attitudes Toward University Of New Hampshire Police, Angela R. Hurley

Honors Theses and Capstones

This study examines undergraduate students from the University of New Hampshire attitudes towards campus police, specifically how student experience with campus police affects their attitudes toward them. There were a total of 113 respondents from the University of New Hampshire that answered an online survey. The survey looked specifically at the relationship between students' experience and attitudes towards UNH police, hypothesizing that students who had perceived fair encounters with campus police would be more likely to contact them in an emergency and have more positive attitudes toward them . Multivariate analysis shows perceptions of witnessing an interaction and being approached …

Are Litigation Outcome Disparities Inevitable? Courts, Technology, And The Future Of Impartiality., Avital Mentovich, J.J. Prescott, Orna Rabinovich-Einy

Articles

This article explores the ability of technology—specifically, online judicial procedures—to eliminate systematic group-level litigation outcome disparities (i.e., disparities correlated with the visible identity markers of litigants). Our judicial system has long operated under the assumption that it can only be “impartial enough.” After all, judges, like all human beings, harbor implicit biases that are often sizable, unconscious, and triggered automatically, and research indicates that strategies to curb implicit biases in human decision making may be ineffective, especially in the face of the resource and caseload constraints of modern-day adjudication. The recent emergence of online court proceedings, however, offers new hope …

Children's Equality: The Centrality Of Race, Gender, And Class, Nancy E. Dowd

Fordham Urban Law Journal

No abstract provided.

Developmental Justice And The Voting Age, Katharine Silbaugh

Fordham Urban Law Journal

No abstract provided.

Lessons From The Prekindergarten Movement, Clare Huntington

Fordham Urban Law Journal

No abstract provided.

Children's Equality: Strategizing A New Deal For Children, Nancy E. Dowd

Fordham Urban Law Journal

No abstract provided.

The Injustice Of Formal Gender Equality In Sentencing, Emma Decourcy

Fordham Urban Law Journal

No abstract provided.

The Way Forward: Permissible And Effective Race-Conscious Strategies For Avoiding Racial Segregation In Diverse School Districts, Laura Petty

Fordham Urban Law Journal

No abstract provided.

In Defense Of Reentry: A Response To Shreya Subramani's Productive Separations, Kelly Orians, Thomas Frampton

Fordham Urban Law Journal

No abstract provided.

The Path Less Traveled: Afrocentric Schools And Their Potential For Improving Black Student Achievement While Upholding Brown, Chaz Rotenberg

Fordham Urban Law Journal

No abstract provided.

Officer Use Of Force And The Failure Of Oversight Of New York City Jails, Jennifer Ferentz

Fordham Urban Law Journal

No abstract provided.

Decarcerating New York City: Lessons From A Pandemic, Nicole Smith Futrell

Fordham Urban Law Journal

No abstract provided.

Doing More Good Than Harm: Alternatives To Incarceration For Young People Charged With Crimes Of Terrorism, Nora Leslie Stephens

Fordham Urban Law Journal

No abstract provided.

Furman'S Legacy: New Challenges To The Overbreadth Of Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what …

Before The Cell Door Shuts: Justice Reform Efforts Should Focus On Steps Besides Sentencing, Barbara L. Mcquade

Articles

Mark Osler writes that criminal justice reform efforts have been hampered by what he calls “the slows.” He explains that despite bipartisan support, which resulted in the First Step Act of 2018,2 criminal justice reform remains elusive. He then offers some insightful suggestions for how to increase the pace.