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Full-Text Articles in Law

Resurrecting Arbitrariness, Kathryn E. Miller Oct 2022

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …


Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum Apr 2022

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …


Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel Feb 2022

Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel

Articles

This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: …


White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis Jan 2022

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …


Keeping Guns In The Hands Of Abusive Partners: Prosecutorial And Judicial Subversion Of Federal Firearms Laws, Bonnie Carlson Jan 2022

Keeping Guns In The Hands Of Abusive Partners: Prosecutorial And Judicial Subversion Of Federal Firearms Laws, Bonnie Carlson

Articles

State actors are imbued with the power of the government to enforce and apply the law. When they use that power to instead inhibit a law’s enforcement, they are engaging in subversion. Subversion is problematic on its face: it frustrates legislative intent, creates confusion, and destabilizes the separation of powers foundational to our democracy. But subversion is particularly insidious when it is done to the detriment of vulnerable individuals. That is the case when state prosecutors and judges purposefully undermine federal law intended to keep firearms out of the hands of abusive partners. Guns and domestic violence can be a …


Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock Oct 2021

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

Articles

This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …


Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman Jul 2021

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Articles

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.


(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig Jun 2021

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

Articles

This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …


The Problem With Assumptions: Revisiting “The Dark Figure Of Sexual Recidivism”, Tamara Rice Lave, Jj Prescott, Grady Bridges Jun 2021

The Problem With Assumptions: Revisiting “The Dark Figure Of Sexual Recidivism”, Tamara Rice Lave, Jj Prescott, Grady Bridges

Articles

What is the actual rate of sexual recidivism given the well‐ known fact that many crimes go unreported? This is a difficult and important problem, and in “The dark figure of sexual recidivism,” Nicholas Scurich and Richard S. John (2019) attempt to make progress on it by “estimat[ing] actual recidivism rates . . . given observed rates of reoffending” (p. 171). In this article, we show that the math in their probabilistic model is flawed, but more importantly, we demonstrate that their conclusions follow ineluctably from their empirical assumptions and the unrepresentative empirical research they cite to benchmark their calculations. …


The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow Mar 2021

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs. Although …


9/11 Impacts On Muslims In Prison, Spearit Jan 2021

9/11 Impacts On Muslims In Prison, Spearit

Articles

This essay is part of a volume that reflects on the 20-year anniversary of the attacks of September 11, 2001. The work examines the impacts this event had on the management of Muslims in prison. Soon after the attacks, the culture war against Muslims in the United States began to seep into prisons, where Muslims faced heightened levels of Islamophobia, which cut across several areas of existence: the ability to access religious literature, religious leaders, and paraphernalia, in addition to the federal creation of Communication Management Units. There was also heightened hysteria about the idea of Muslim radicalization in prison, …


Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson Jan 2021

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

Articles

In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …


A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Donna Coker, Thalia Gonzalez Jan 2021

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

Articles

No abstract provided.


Fraudulent Malattributed Comments In Agency Rulemaking, Michael Herz Nov 2020

Fraudulent Malattributed Comments In Agency Rulemaking, Michael Herz

Articles

A specter is haunting notice-and-comment rulemaking—the specter of fraudulent comments. The stand-out example—the apotheosis—was the Federal Communications Commission’s (FCC) net neutrality rulemaking in 2017. Well over twenty million comments were submitted, but millions of those were highly suspect. It turns out only about 800,000 of those comments were unique—that is, not written by a computer and not a pre-written form letter or variation thereof. And of the rest, perhaps half were submitted by computers (bots) using fictitious names or the names of real people, living and dead, who had no connection to the comment.


Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus Nov 2020

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …


How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Gabriel Scheffler, Andrew Hammond, Ariel Jurow Kleiman Oct 2020

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Gabriel Scheffler, Andrew Hammond, Ariel Jurow Kleiman

Articles

No abstract provided.


The Power Of A Clean Slate, J.J. Prescott, Sonja B. Starr Jul 2020

The Power Of A Clean Slate, J.J. Prescott, Sonja B. Starr

Articles

Tens of millions of Americans have criminal records, including about 20 million with felony convictions. Conviction records automatically trigger countless collateral legal consequences, such as occupational restrictions that bar employers from hiring qualified candidates. Moreover, research overwhelmingly shows that bearing a criminal record raises significant barriers to employment, housing, and various other opportunities. These persistent obstacles can overwhelm an individual’s efforts at reintegration and can aggravate poverty, inequality, and racial disparities in our society. And because factors like unemployment and housing instability contribute to crime risk, these effects in turn make society less safe.


May The State Punish What It May Not Prevent?, Gabriel S. Mendlow Jul 2020

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …


Medical Marijuana, Taxation, And Internal Revenue Code Section 280e, Douglas A. Kahn, Howard J. Bromberg Jun 2020

Medical Marijuana, Taxation, And Internal Revenue Code Section 280e, Douglas A. Kahn, Howard J. Bromberg

Articles

Congress enacted § 280E of the Internal Revenue Code in 1982 to punish businesses engaged in illegal drug trafficking, including marijuana. Section 280E denies all credits and deductions, including ordinary business expenses, from gross income of businesses illegally trafficking in a Schedule I or II controlled substance. This provision violates the principle that the tax code should foster a consistent treatment of income, regardless of source; and that the income tax is ill-used for punitive measures. Now that marijuana has been legalized in some form in at least 46 states for therapeutic purposes, this federal tax penalty transgresses principles of …


May The State Punish What It May Not Prevent?, Gabriel S. Mendlow Jun 2020

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …


Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr May 2020

Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr

Articles

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally …


Understanding Violent-Crime Recidivism, J.J. Prescott, Benjamin Pyle, Sonja B. Starr May 2020

Understanding Violent-Crime Recidivism, J.J. Prescott, Benjamin Pyle, Sonja B. Starr

Articles

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …


The Effects Of Anti-Immigrant Laws In The U.S. On Victims Of Domestic Violence, Sexual Assault, And Human Trafficking: A Gender-Based Human Rights Analysis, Caroline S. Bettinger-Lopez, Jamila Flomo, Amanda Suarez Apr 2020

The Effects Of Anti-Immigrant Laws In The U.S. On Victims Of Domestic Violence, Sexual Assault, And Human Trafficking: A Gender-Based Human Rights Analysis, Caroline S. Bettinger-Lopez, Jamila Flomo, Amanda Suarez

Articles

No abstract provided.


Strategies For Emergency Release Of Incarcerated People During Covid-19 Outbreak, Sara Alvarez, Andrew Kopke, Mariel Stein, Meg Tiley Mar 2020

Strategies For Emergency Release Of Incarcerated People During Covid-19 Outbreak, Sara Alvarez, Andrew Kopke, Mariel Stein, Meg Tiley

Articles

Students in Cardozo's Criminal Defense Clinic partnered with the Office of the Appellate Defender to outline legal strategies to advocate for the release of incarcerated people who are vulnerable to harm from COVID-19.


No Longer A ‘Collateral Consequence’: Imprisonment And The Reframing Of Citizenship, Cormac Behan Jan 2020

No Longer A ‘Collateral Consequence’: Imprisonment And The Reframing Of Citizenship, Cormac Behan

Articles

This article examines the impact of imprisonment on citizenship. It identifies how civil, political and social rights are circumscribed with a sentence of imprisonment, and scrutinizes to what extent citizenship is limited for prisoners. Drawing on recent developments in England and Wales, it contends that citizenship has been eroded, not as a ‘collateral consequence’ of imprisonment, but rather as a determined penal policy. The boundaries of punishment have become blurred, moving from criminal justice institutions, and extending towards what is termed civil and political penality. Finally, it argues that, because citizenship in prison is inevitably framed around the differences between …


Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton Jan 2020

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

Articles

No abstract provided.


Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit Jan 2020

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies …


Racial Profiling: Past, Present, And Future, David A. Harris Jan 2020

Racial Profiling: Past, Present, And Future, David A. Harris

Articles

It has been more than two decades since the introduction of the first bill in Congress that addressed racial profiling in 1997. Between then and now, Congress never passed legislation on the topic, but more than half the states passed laws and many police departments put anti-profiling policies in place to combat it. The research and data on racial profiling has grown markedly over the last twenty-plus years. We know that the practice is real (contrary to many denials), and the data reveal racial profiling’s shortcomings and great social costs. Nevertheless, racial profiling persists. While it took root most prominently …


The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby Jan 2020

The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby

Articles

No abstract provided.


Tiptoeing Through The Landmines: The Evolution Of States' Legal Ethics Authority Regarding Representing Cannabis Clients, Karen Boxx Jan 2020

Tiptoeing Through The Landmines: The Evolution Of States' Legal Ethics Authority Regarding Representing Cannabis Clients, Karen Boxx

Articles

No abstract provided.