Digital Commons Network^™

Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg, Lauren Sudeall

Faculty Publications

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …

Policing The Polity, Eisha Jain

Faculty Publications

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full …

Automated Legal Guidance At Federal Agencies, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

When individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the …

Restoring Faith In Military Justice, Eleanor T. Morales, John W. Brooker

Faculty Publications

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military …

The Anti-Parent Juvenile Court, Barbara A. Fedders

Faculty Publications

This Article identifies and analyzes features of the juvenile delinquency court that harm the people on whom children most heavily depend: their parents. By negatively affecting a child’s family—creating financial stress, undermining a parent’s central role in rearing her child, and damaging the parent-child bond—these parent-harming features imperil a child’s healthy growth and development. In so doing, the Article argues, they contravene the juvenile court’s stated commitment to rehabilitation.

In juvenile court, fees and fines are assessed against parents, who also often must incur lost wages to comply with court orders. In addition, while youths of all economic backgrounds and …

Constraining Criminal Laws, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the …

Prosecutorial Discretion And Immigration Arrest: How Criminal Arrests Set Immigration Enforcement Priorities, Eisha Jain

Faculty Publications

Prosecutorial discretion is once again at the forefront of immigration enforcement debates. In June 2022, a federal district court effectively rescinded Executive guidelines for prosecutorial discretion in immigration enforcement. The court struck down these guidelines – longstanding as a means of establishing priorities for the arrest, detention, and removal of noncitizens– on the basis that they conflicted with provisions of the INA. According to the district court, the “core” of the legal dispute centered on “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress.” The district court …

The Lawyers Justice Corps: A Licensing Pathway To Enhance Access To Justice, Eileen Kaufman

Scholarly Works

The idea for establishing a Lawyers Justice Corps emerged out of efforts to solve a problem: how to license lawyers at a time when COVID-19 had expanded the need for new lawyers while also making an in-person bar exam dangerous, if not impossible. We-the Collaboratory on Legal Education and Licensing for Practice'-proposed the Lawyers Justice Corps to provide a different and better way of certifying minimum competence for new attorneys while at the same time helping to create a new generation of lawyers equipped to address a wide range of social justice, racial justice, and criminal justice issues. When implemented, …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Scholarly Works

No abstract provided.

The Color Of Local Government: Observations Of A Brown Buffalo On Racial Impact Statements In The Movement For Water Justice, Tom I. Romero Ii

Scholarly Works

This Article advocates for the adoption of racial impact statements ("RIS") in local government decision making, particularly among water utilities. Situated in the larger history of water and climate injustice in Colorado and the arid American West, this Article examines ways that racially minoritized communities engage and contest legal and political water regimes. The Article then explores how water utilities could use RISs in the acquisition, treatment, and delivery of drinking water. If made a part of the everyday work of water utilities, RISs provide a useful tool to center the history and lived experiences of racially minoritized communities battling …

A Brown Buffalo's Observations On Color (Blindness), Legal History, And Racial Justice In The Rocky Mountain West, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Surveilling Potential Uses And Abuses Of Artificial Intelligence In Correctional Spaces, Justin Iverson

Scholarly Works

In section II, this paper will begin with an analysis of the development of AI, noting famous examples and establishing a baseline definition as a lens for the rest of this discussion. This paper will assess aspects of AI and machine learning to the extent it furthers our understanding of AI’s ability to collect data and make decisions. Some popular culture references will be brought into focus here to recognize storytelling’s ability to inspire and influence real-world scientific pursuits. Of preliminary importance, the AI we have both dreamed of and feared are certainly kept in mind as technology advances through …

How To Design An Antiracist State And Local Tax System, Francine J. Lipman

Scholarly Works

Since the first ship of enslaved African people landed in Virginia in 1619, racist policies in institutions, systems, structures, practices, and laws have ensured inequity for people of color. These racist policies include every imaginable variant of injustice from slavery to lynching, to segregation, and to economic injustices, including those delivered through tax systems today. Although facially color-blind, tax systems have long empowered the explosion of white wealth and undermined wealth accumulation for Black families and communities of color. State and local tax systems, especially in the South, have deeply-rooted racist fiscal policies, including Jim Crow laws that continue to …

Coercive Control And The Limits Of Criminal Law, Courtney K. Cross

Scholarly Works

Domestic violence does not always include physical violence. While abusive relationships may be punctuated with physical violence, it is the dynamic of control that constitutes the crux of the abuse. This dynamic is characterized by behaviors designed to dominate, degrade, and discipline, including emotional and financial abuse, isolation, rulemaking, and surveillance. These nonviolent forms of abuse are collectively referred to as "coercive control," and their impact can be debilitating and devastating for survivors of domestic violence. Despite what we know about domestic violence, the criminal legal system focuses its efforts on discrete incidents or encounters between the abuser and the …

The Survey That Was Used For The Study “Possible Causes Of Leaks In The Transfer Pipeline: Student Views At The 19 Colleges Of The City University Of New York”, Alexandra Logue, Yoshiko Oka, David Wutchiett, Kerstin Gentsch, Stephanie Abbeyquaye

Publications and Research

Survey used for the study resulting in this article: Logue, A. W., Oka, Y., Wutchiett, D., Gentsch, K., & Abbeyquaye, S. (2022). Possible causes of leaks in the transfer pipeline: Student views at the 19 colleges of The City University of New York. Journal of College Student Retention: Research, Theory & Practice.

Publisher version of article: https://doi.org/10.1177/15210251221117276

Accepted manuscript version of article: https://academicworks.cuny.edu/gc_pubs/901

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Punitive Surveillance, Kate Weisburd

Faculty Scholarship

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people …

Creating A Collaborative Trauma-Informed Interdisciplinary Citywide Victim Services Model Focused On Health Care For Survivors Of Human Trafficking, Juhi Jain, Mackenzie Bennett, Mark D Bailey, Daniel Liaou, Sheri-Ann O Kaltiso, Jordan Greenbaum, Kimberly Williams, Mollie R Gordon, Melissa I M Torres, Phuong T Nguyen, John H Coverdale, Victor Williams, Cayla Hari, Samantha Rodriguez, Temilola Salami, Jonell E Potter

Center for Medical Ethics and Health Policy Staff Publications

Although human trafficking is recognized as a public health issue, research on the health effects of human trafficking and best intervention practices is limited. We describe 2 citywide collaborative victim services models, the THRIVE (Trafficking, Healthcare, Resources, and Interdisciplinary Victim Services and Education) Clinic at the University of Miami and Jackson Health System in Miami, Florida, and the Greater Houston Area Pathways for Advocacy-based, Trauma-Informed Healthcare (PATH) Collaborative at Baylor College of Medicine, CommonSpirit Health, and San Jose Clinic in Houston, Texas, funded in part by the Office for Victims of Crime, which focus on trauma-informed health care delivery for …

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt

Scholarly Works

Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, …

Girls, Assaulted, India Thusi

Articles by Maurer Faculty

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

Faculty Scholarship

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

Faculty Scholarship

No abstract provided.

Cop Tracing, Jonathan Abel

Faculty Scholarship

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines the logistical and legal barriers to cop tracing. Finally, the Article considers the implications of cop tracing’s absence. The failure to engage in cop tracing is symptomatic of the failure to see the misconduct of even a single bad officer in systemic terms.

The House Always Wins: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

Faculty Scholarship

No abstract provided.

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Thalia Gonzalez, Donna Coker

Faculty Scholarship

No abstract provided.

A Health Justice Response To School Discipline And Policing, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

Inequities in school discipline and policing have been long documented by researchers and advocates. Longitudinal data is clear that Black, Indigenous, people of color (BIPOC) students are punished and policed at higher rates than their white classmates. For students who have disabilities, especially those with intersectional identities, the impact of school discipline and policing is amplified, with disparities existing at some of the highest rates across multiple categories. And this disproportionality has not diminished during short- and long-term school closures resulting from the COVID-19 pandemic. In fact, schools have employed new models of exclusion in the pandemic setting that operate …

Race, Public Health, And The Epidemic Of Incarceration, Thalia Gonzalez, Emma Kaeser

Faculty Scholarship

No abstract provided.

Dosing Discrimination: Regulating Pdmp Risk Scores, Jennifer D. Oliva

Faculty Scholarship

Prescription drug monitoring program (PDMP) predictive surveillance platforms were designed for-and funded by-law enforcement agencies. PDMPs use proprietary algorithms to determine a patient's risk for prescription drug misuse, diversion, and overdose. The proxies that PDMPs utilize to calculate patient risk scores likely produce artificially inflated scores for marginalized patients, including women and racial minorities with complex, pain­ related conditions; poor, uninsured, under-insured, and rural individuals; and patients with co-morbid disabilities or diseases, including substance use disorder and mental health conditions. Law enforcement conducts dragnet sweeps of PDMP data to target providers that the platform characterizes as "overprescribers" and patients that …

The Influence Of White Exceptionalism On Drug War Discourse, Jennifer D. Oliva, Taleed El-Sabawi

Faculty Scholarship

No abstract provided.