Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 6763

Full-Text Articles in Law

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker Oct 2022

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …


Flint's Fight For Environmental Rights, Noah D. Hall Aug 2022

Flint's Fight For Environmental Rights, Noah D. Hall

Northwestern University Law Review

This Essay reviews the recent development of environmental rights within U.S. constitutional law, advanced through a series of federal court decisions in the wake of the Flint water crisis. The residents of Flint were poisoned and lied to by their government for nearly two years. They experienced how American environmental governance has failed at the state and federal levels and how our environmental laws leave individuals and communities unprotected. And then Flint fought back, in the courts, for five years. Flint residents have been overwhelmingly successful, achieving some justice for themselves and advancing substantive rights and remedies within our constitutional …


Modern Sentencing Mitigation, John B. Meixner Jr. Apr 2022

Modern Sentencing Mitigation, John B. Meixner Jr.

Northwestern University Law Review

Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …


Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes Apr 2022

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes

Northwestern University Law Review

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a …


Reexamining The Application Of Duress And Necessity Defenses To Prison Escape In The Context Of Covid19, Bill Clawges Apr 2022

Reexamining The Application Of Duress And Necessity Defenses To Prison Escape In The Context Of Covid19, Bill Clawges

JCLC Online

The classic example of the necessity defense involves a prisoner escaping from a burning prison. Surely, the law would not require them to stay in the prison when doing so would put their life at an immediate and grave risk. This example epitomizes the purpose of the necessity defense; society would rather the prisoner survive and leave prison than die ablaze while obeying the letter of the law. In recent years, the difference between the two justification defenses of necessity and duress has become blurred, especially in cases involving prison escape. Both are equally applicable, and both are relevant in …


Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi Apr 2022

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

JCLC Online

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …


Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French Apr 2022

Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French

JCLC Online

The U.S. Supreme Court established the “personal benefit” test in Dirks v. SEC to determine whether a tippee assumed a fiduciary duty to not trade based on or disclose inside information when a tipper breached his or her fiduciary duty by improperly disclosing such information to the tippee. Under the personal benefit test, a tipper breaches his or her fiduciary duty if the tipper derives a personal benefit, either directly or indirectly, from disclosing the inside information to a tippee. The Supreme Court provided examples as to what constitutes a personal benefit, such as the tipper’s expectation of reputational benefits …


The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin Apr 2022

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the second in a series of two essays that explore Reginald McFadden’s commutation. This Part considers whether, in hindsight, there was any sound basis for McFadden’s release given the policy grounds for commutations and describes …


Forced Prison Labor: Punishment For A Crime?, Wafa Junaid Jan 2022

Forced Prison Labor: Punishment For A Crime?, Wafa Junaid

Northwestern University Law Review

The Thirteenth Amendment’s prohibition of involuntary servitude carves out an exception to its protections that allows the use of forced labor as “punishment for a crime” when an individual is “duly convicted.” Courts have interpreted this language as placing a categorical bar on Thirteenth Amendment claims alleged by individuals who are incarcerated. Yet, a consistent understanding of the term “punishment” that draws from the term’s use in the Eighth Amendment’s Cruel and Unusual Punishment Clause supports a narrower interpretation of the Thirteenth Amendment’s punishment exception. This Note argues that individuals cannot be denied Thirteenth Amendment protections unless they are explicitly …


Qualified Immunity And Unqualified Assumptions, Teressa E. Ravenell, Riley H. Ross Iii Jan 2022

Qualified Immunity And Unqualified Assumptions, Teressa E. Ravenell, Riley H. Ross Iii

Journal of Criminal Law and Criminology

Section 1983 gives people the right to sue a government official for violating their constitutional rights. Qualified immunity provides these same officials with an affirmative defense -- even if they violated the constitution, they are not liable for monetary damages if the right at issue was not clearly established at the time of the alleged conduct. The qualified immunity is based upon the basic assumption that “a reasonably competent public official should know the law governing his conduct.” If the law was clearly established the official will be liable. If not, the Court has reasoned that it would be unfair …


Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden Jan 2022

Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden

Journal of Criminal Law and Criminology

Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to …


Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia Jan 2022

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

JCLC Online

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …


Immigration Public Defenders: A Model For Going Beyond Adequate Representation, Matthew Chang Jan 2022

Immigration Public Defenders: A Model For Going Beyond Adequate Representation, Matthew Chang

JCLC Online

What does adequate legal representation for noncitizen criminal defendants look like? After the Supreme Court decided the landmark case of Padilla v. Kentucky, criminal defense attorneys became responsible for advising clients if and when there might be immigration consequences that accompany acceptance of a guilty plea deal, such as a potential risk of deportation. Currently, the criminal and immigration representation are completely divided. This Comment argues that the Padilla mandate alone, while important, fails to adequately provide noncitizen criminal defendants their Fifth Amendment Due Process Right and Sixth Amendment Right to Counsel. Using the Supreme Court’s legal analysis in …


The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin Jan 2022

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.


Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert Jan 2022

Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert

Journal of Criminal Law and Criminology

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …


Prison Medical Deaths And Qualified Immunity, Andrea Craig Armstrong Jan 2022

Prison Medical Deaths And Qualified Immunity, Andrea Craig Armstrong

Journal of Criminal Law and Criminology

The defense of qualified immunity for claims seeking monetary damages for constitutionally inadequate medical care for people who are incarcerated is misguided. According to the U.S. Department of Justice, medical illness is the leading cause of death of people incarcerated in prisons and jails across the United States. Qualified immunity in these cases limits accountability for carceral actors, thereby limiting incentives for improvements in the delivery of constitutionally adequate medical care. The qualified immunity defense also compounds other existing barriers, such as higher subjective intent standards and the Prison Litigation Reform Act, to asserting legal accountability of prison and jail …


Recalibrating Qualified Immunity: How Tanzin V. Tanvir, Taylor V. Riojas, And Mccoy V. Alamu Signal The Supreme Court's Discomfort With The Doctrine Of Qualified Immunity, Patrick Jaicomo, Anya Bidwell Jan 2022

Recalibrating Qualified Immunity: How Tanzin V. Tanvir, Taylor V. Riojas, And Mccoy V. Alamu Signal The Supreme Court's Discomfort With The Doctrine Of Qualified Immunity, Patrick Jaicomo, Anya Bidwell

Journal of Criminal Law and Criminology

In December 2020, the United States Supreme Court issued its most important decision on qualified immunity since Harlow v. Fitzgerald, and the issue in the case did not even involve the doctrine. In the Court’s unanimous opinion in Tanzin v. Tanvir, which dealt with the interpretation of the Religious Freedom Restoration Act, Justice Thomas explicitly distanced the Court from the very type of policy reasoning used to create qualified immunity. He also embraced the availability of damages claims against government officials as historically justified and often necessary to vindicate individual rights and to check the government’s power. The …


Civil Rights Litigation In The Lower Courts: The Justice Barrett Edition, Aaron L. Nielson, Paul Stancil Jan 2022

Civil Rights Litigation In The Lower Courts: The Justice Barrett Edition, Aaron L. Nielson, Paul Stancil

Journal of Criminal Law and Criminology

Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation. Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such …


How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty Jan 2022

How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty

Journal of Criminal Law and Criminology

Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 S California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich …


Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis Jan 2022

Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis

Journal of Criminal Law and Criminology

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …


Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley Jan 2022

Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley

Journal of Criminal Law and Criminology

Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon …


Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde Jan 2022

Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde

Journal of Criminal Law and Criminology

While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of …


Paying For A Clean Record, Amy F. Kimpel Jan 2022

Paying For A Clean Record, Amy F. Kimpel

Journal of Criminal Law and Criminology

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the …


Is Juvenile Probation Obsolete? Reexamining And Reimagining Youth Probation Law, Policy, And Practice, Patricia Soung Jan 2022

Is Juvenile Probation Obsolete? Reexamining And Reimagining Youth Probation Law, Policy, And Practice, Patricia Soung

Journal of Criminal Law and Criminology

The dramatic growth of prison populations in the United States during the latter half of the twentieth century, as well as the problems of over-policing and police misconduct, have been well documented and decried.1 But the related expansion and problems of community supervision receive far less attention. Across the nation, reform efforts have increasingly included a focus on probation, especially juvenile probation, as an actor that both jails and polices youth in the community while also trying to rehabilitate them and promote their well-being. This Article studies the juvenile probation system, with a focus on California as one important …


Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder Jan 2022

Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder

Journal of Criminal Law and Criminology

When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments …


Rethinking Prison For Non-Violent Gun Possession, Robert Weiss Jan 2022

Rethinking Prison For Non-Violent Gun Possession, Robert Weiss

Journal of Criminal Law and Criminology

Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop …


Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack Dec 2021

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Northwestern Journal of Technology and Intellectual Property

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …


Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace Nov 2021

Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace

Northwestern University Law Review

Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …


Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes Oct 2021

Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes

Northwestern University Law Review

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation …


Identifying The Most Democratic Institution To Lead Criminal Justice Reform, Harry B. Dodsworth Oct 2021

Identifying The Most Democratic Institution To Lead Criminal Justice Reform, Harry B. Dodsworth

Northwestern University Law Review

American criminal justice is in crisis, and most scholars agree why: unduly severe laws, mass incarceration, and disproportionate effects on minority groups. But they don’t agree on a solution. One group of scholars—known as the “democratizers”—thinks the answer is to make the criminal justice system more democratic. According to democratizers, layperson participation and local democratic control will impart sensibility into criminal justice reform. In short, a transfer of power away from distant lawmakers and toward local communities, which would craft their own criminal codes and elect their own prosecutors. This argument assumes that more local means more democratic—but what if …