Digital Commons Network^™

Family Needs, Family Leave In 2023, Katharine B. Silbaugh

Faculty Scholarship

Instituting support for women and children is a difficult task to imagine in a world that is removing reproductive freedom and healthcare. In this hypothetical, do we treat the removal of abortion care as a force majeure, natural disaster, or an earthquake? If so, after the earthquake, the community bands together and works tirelessly to compensate for what has happened. But the removal of abortion care was not a natural disaster-it was planned, and it is embedded in background conditions that are pushing further away from support for women and children.

The primary task of this Article is to respond …

Prosecution And Polarization, Steven Arrigg Koh

Faculty Scholarship

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.

This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time …

Pitfalls Of Progressive Prosecution, Carissa Byrne Hessick

Faculty Publications

This Essay examines the political vulnerabilities facing the progressive prosecution movement, arguing that two core features of its public brand—emphasizing a fundamental break from traditional prosecution and pledging to “do less” by shrinking the criminal justice footprint—have inadvertently exposed reform‑oriented prosecutors to intensified backlash. Drawing on recent examples, the Essay shows how framing progressive prosecution as radically different obscures the long-standing prosecutorial tools these offices still rely on, enabling critics to portray routine exercises of discretion as unprecedented or dangerous. It further explains how decarceral commitments make progressive prosecutors easy targets when crime or disorder rises, both because voters may …

Fake And Real People In Bankruptcy, Melissa B. Jacoby

Faculty Publications

This essay explores the bankruptcy system’s structural bias in favor of artificial persons—for-profit companies, non-profit enterprises, and municipalities given independent life by law—relative to humans. The favorable treatment extends to foundational issues such as the scope and timing of debt relief, the conditions to receiving any bankruptcy protections, and the flexibility to depart from the Bankruptcy Code by asserting that doing so will maximize economic value. The system’s bias also contributes to the “bad-apple-ing” of serious policy problems, running counter to other areas of law that have deemed harms like discrimination to be larger institutional phenomena rather than merely the …

The Real Problem With Plea Bargaining, Carissa Byrne Hessick

Faculty Publications

This Response critiques Jeffrey Bellin’s argument that plea‑bargaining reform should focus solely on problems uniquely caused by plea bargaining and instead contends that the practice has fundamentally reshaped American criminal justice in ways that extend far beyond Bellin’s narrow framework. The Response argues that plea bargaining exacerbates systemic issues—including harsh sentencing, coercive leverage, and inaccurate convictions—by insulating legislative excess, weakening trial incentives, and pressuring even innocent defendants to plead guilty. It further maintains that Bellin understates how plea bargaining distorts legislative behavior, affects statutory design, and suppresses political pressure for reform. Most importantly, the Response identifies plea bargaining’s central harm …

The (Local) Prosecutor, Carissa Byrne Hessick, Rick Su

Faculty Publications

The rise of the reform prosecutor has led to a backlash. Many states have sought to circumvent the power of reform prosecutors, others to sanction them, and some to replace them with unelected appointees. These efforts have been met with resistance and, in some instances, with legal challenges. Resolving those challenges may prove difficult because local prosecutors straddle three distinct axes within state governments: the horizontal divide between its branches, the vertical divide between the state government and its local subdivisions, and the constitutional divide between constitutional and statutory offices. This Essay exposes the significant state variation in the legal …

Automated Agencies, Joshua D. Blank, Leigh Osofsky

Faculty Publications

This article presents the first comprehensive study of how federal agencies use automated legal guidance tools—such as chatbots, virtual assistants, and decision-tree systems—to explain complex law to the public. The authors show that while automation offers administrative efficiency and wider reach, it often simplifies or distorts underlying legal rules. Through detailed analysis of agency tools and ten semi-structured interviews with officials, the article demonstrates that automated systems can portray unsettled or complex law as clear, omit exceptions, and answer too narrowly, thereby influencing user behavior in ways agencies neither fully appreciate nor monitor.

The study further finds that agencies lack …

Gender Violence As Legacy: To Imagine New Approaches, Deborah M. Weissman

Faculty Publications

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It is informed by the scholarship that propounds the need to develop community responses independent of the carceral system as a means to address the systemic source factors that contribute to Intimate Partner Violence (“IPV”), with attention to restorative and transformative justice approaches (RJ/TJ). This essay advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to …

Establishing A Framework For The Ethical And Legal Use Of Web Scrapers By Cybercrime And Cybersecurity Researchers: Learnings From A Systematic Review Of Australian Research, Katie Logos, Russell Brewer, Colette Langos, Bryce Westlake

Faculty Research, Scholarly, and Creative Activity

The Internet has become an increasingly attractive location for collecting data about cyber threats, driven by the abundance of quality data available and accessible online. As such, researchers and practitioners have turned to automated data collection technologies (ADCT), including ‘web crawlers’ and ‘web scrapers’, to study these threats. The rapid proliferation of ADCT has meant directions for their ethical and legal operation have been slow to adapt, with no clear guidelines regulating their use for research. This article identifies the relevant ethical and legal frameworks guiding the deployment of ADCT in Australia for cybersecurity research. This is accomplished through a …

Felony Financial Disenfranchisement, Neel U. Sukhatme, Alexander Billy, Gaurav Bagwe

Vanderbilt Law Review

Individuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (“LFOs”)-—fines, fees, and/or restitution stemming from convictions-—in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.

Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions imply such disenfranchisement is …

Intersections Of Disproportion: A Critical Quantitative Examination Of Dis/Ability And Gender In Black Students’ School Discipline Outcomes, Ceema Samimi, Noah Jefferson, Shelby Flanagan, Yolanda Anyon

Faculty Research, Scholarly, and Creative Activity

This study uses critical race quantitative intersectionality to examine the impacts of gender and dis/ability type on Black students’ school discipline outcomes. We use multilevel logistic regression models to analyze data from a large urban school district, considering the intersectional impact of gender and dis/ability type on school discipline outcomes among Black students (suspension, restorative justice, referral to law enforcement). We found that Black students identified as male, labeled with emotional dis/abilities, or identified as having ADHD were more likely to experience school discipline consequences than those who were not. These findings suggest that gender and dis/ability status are significant …

Qualitative Examination Of Jri Initiatives And Case Processing, Brian C. Renauer, Kelsey S. Henderson, Christopher M. Campbell

Criminology and Criminal Justice Faculty Publications and Presentations

The purpose of this study is to develop a more in depth understanding of the contexts, motivations, and circumstances that impacted the development and implementation of county-specific JRI programing in the state of Oregon. We place a particular emphasis on understanding the factors related to the use of downward departures and variation in approaches. In addition, the study also uncovered broader JRI themes and challenges that impact overall program development, implementation, and future longevity/stability. The report contains 5 sections: 1- Broad Themes Related to County JRI Development and Implementation, 2 -Historic and Contemporary Challenges, 3 - Downward Departure Programs, 4 …

Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young

All Faculty Publications

The origin of this essay reminds us of the importance of interdisciplinary collaboration to the development and assessment of public policy. It also demonstrates the serendipitous beginnings of many interesting inquiries. This collaboration was thus fortuitous: authors Lake and Young met during Lake’s doctoral dissertation defence. Young was on the examining committee. Lake presented a series of epidemiological studies (three of which are summarized below) involving the use of cannabis for therapeutic and harm reduction purposes among marginalized people who use drugs (PWUD) in Vancouver. Young’s lines of questioning involving the legal implications of Lake’s findings spurred the idea to …

The Gender Of Gideon, Kathryn A. Sabbeth, Jessica Steinberg

Faculty Publications

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article …

Understanding Uncontested Prosecutor Elections, Carissa Byrne Hessick, Sarah Treul, Alexander Love

Faculty Publications

Prosecutors are very powerful players in the criminal justice system. One of the few checks on their power is their periodic obligation to stand for election. But very few prosecutor elections are contested, and even fewer are competitive. As a result, voters are not able to hold prosecutors accountable for their decisions. The problem with uncontested elections has been widely recognized, but little understood. The legal literature has lamented the lack of choice for voters, but any suggested solutions have been based on only anecdote or simple descriptive analyses of election data.

Using a logistic regression analysis, this Article estimates …

How Latino Anti-Blackness Upholds Racism In The United States: A Counterstory Book Review Of Tanya Katerí Hernández’S Racial Innocence, Martín Alberto Gonzalez

Chicano/Latino Studies Faculty Publications and Presentations

In this piece, the author uses counterstorytelling as a research method to write a book review of Tanya Katerí Hernández’s recently published book, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality. Specifically, in this counterstory, the author created two composite characters, Alberto and his mother, Lola, made up of arguments from the book to engage in a real and critical dialogue about the anti-Blackness amongst Latinos in the United States. Drawing on Hernández’s argument that Latino anti-Blackness upholds racism, the author uses this counterstory to illustrate the various ways Latinos enact anti-Black ideologies and practices to …

Building A Culture Of Scholarship With New Clinical Teachers By Writing About Social Justice Lawyering, Susan Bennett, Binny Miller, Michelle Assad, Maria Dooner, Miriam Hinds, Jessica Millward, Citlalli Ochoa, Charles Ross, Anne Schaufele, Caroline Wick

Scholarly Works

No abstract provided.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

Scholarly Works

This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

“Cops Or Coaches?” The Statutory Role Of Juvenile Probation Officers In A Transformative Age, Justin Iverson, David S. Tanenhaus

Scholarly Works

For more than a century, juvenile justice proponents have had a difficult time precisely defining the proper role of the juvenile probation officer while simultaneously stressing that the juvenile probation department is the “workhorse” of the entire system. Existing literature largely focuses on which aspects of policing and social work these officers should embody while ignoring the foundational moorings in state statutes. This Article offers both a historical account of the rise of the juvenile probation officer and a thorough analysis of each state’s laws regarding peace officer status, employing authority, the power of arrest, and the power to carry …

Criminal Law: Cop Tracing, Jonathan Abel

The Judges' Book

No abstract provided.

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

The Judges' Book

No abstract provided.

Misogynistic Extremism: A Scoping Review, Robin O'Hanlon, Frederick L. Altice, Roy Ka-Wei Lee, Jack Laviolette, Gloria Mark, Orestis Papakyriakopoulos, Koustuv Saha, Munmun De Choudhury, Navin Kumar

Publications and Research

In recent years, the concept of “misogynistic extremism” has emerged as a subject of interest among scholars, governments, law enforcement personnel, and the media. Yet a consistent understanding of how misogynistic extremism is defined and conceptualized has not yet emerged. Varying epistemological orientations may contribute to the current conceptual muddle of this topic, reflecting long-standing and on-going challenges with the conceptualization of its individual components. To address the potential impact of misogynistic extremism (i.e., violent attacks), a more precise understanding of what this phenomenon entails is needed. To summarize the existing knowledge base on the nature of misogynistic extremism, this …

A Profile Of Sophomore Inquiry Students Fall 2023, Rowanna L. Carpenter

University Studies Assessment Research

In order to better understand the students who enroll in Sophomore Inquiry (SINQ) courses and begin to identify areas where they may need support, University Studies (UNST) began collecting and compiling data on these students. This report presents a profile of SINQ students from Fall 2022. It presents an overview of all students enrolled in SINQ during Fall 2022 and then summarizes information from the Prior Learning Survey. It is organized around three areas that contribute to student success: academic preparation and concern; financial and physical wellbeing; and connectedness to campus.

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System The Criminal Legal System, Thalia Gonzalez

Faculty Scholarship

A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system—whether in policing practices or carceral settings—leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement coupled with new threats posed by COVID-19, advocates and academics have increasingly called for race-conscious public health-driven reforms to carcerality in the United States. Recognizing the significance of health to carceral reform, the initiation of a health justice grounded lexicon in criminal justice has opened the doorway to new …

Empowering Victims Of Grand Corruption: An Emerging Trend, Naomi Roht-Arriaza

Faculty Scholarship

Who is the victim of systemic corruption? The traditional answer in law is everyone and no one, or public administration itself. When state funds are misused or go missing, at the most the State is the victim. Therefore, only the State has standing to sue for, or receive restitution of, the stolen assets. But that long-held consensus is changing. Activists and lawyers have begun to argue that under systematic corruption it’s not just states, but individuals and communities as well as society as a whole that suffer losses and need to be both represented and repaired. Courts are beginning to …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System, Thalia Gonzalez

Faculty Scholarship

No abstract provided.

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia Gonzalez, Mara Schiff

Faculty Scholarship

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Rights Violations As Punishment, Kate Weisburd

Faculty Scholarship

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not …

#Blackatcmo: Challenging Charter Schools Through Youth Instagram Counterstories, Madhu Narayanan, Matthew Mccluskey

Educational Leadership and Policy Faculty Publications and Presentations

As protests flared in 2020, Black students took to Instagram to voice their experiences at ‘no-excuses’ Charter Management Organizations (CMOs). Such schools have presented a discourse of high achievement and social justice. Yet, in the span of a few weeks, hundreds of posts on Instagram offered rarely heard counter-narratives of the experience of being a student of Color at such schools. This paper analyzes how social media posts combine online discourse and youth culture to provide insight into the racialized experience of schooling. We show how these posts created distinct visual signatures, co-opted the well-crafted narratives of CMOs, and took …

A Fiduciary Principle Of Policing, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.