Law Commons^™

Courts Without Court, Andrew Guthrie Ferguson

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What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

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With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …

Citizen's Arrest And Race, Ira P. Robbins

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I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

For Grand Juries, Roger Fairfax

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In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …

The Perils Of Private Prosecutions, Angela J. Davis

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In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.

Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed …

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Olinda Moyd, Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Bianca Sukrow, Christoph Konig

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The inspiration for this Article was the 2021 Conference of the Global Alliance for Justice Education (GAJE), a biannual gathering since 1999 of law educators and others interested in justice education from around the world. Due to the ongoing COVID-19 pandemic, the conference was conducted virtually. During the three-day conference, over 450 participants from 45 countries gathered to participate in the sharing of workshops and presentations, ranging from discussions of papers to five-minute "lightning talks." In addition, there were virtual spaces for social meetings with new and old friends. The authors attended as many of the sessions as possible in …

Building Fierce Empathy, Binny Miller

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In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax

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The 2020 murder of George Floyd catalyzed a national reckoning on race, and scrutiny of barriers to racial justice, rightfully focused on policing. However, as this Symposium has demonstrated, it is also critical to interrogate the prosecutorial function, given the outsize role prosecutors play in the criminal legal system. Scholars and advocates have utilized a number of frames to explore a key topic of this symposium-the intersection between prosecutorial discretion, prosecutorial ethics, and racial inequity.'

Although the renewed interest in the prosecutor's role in the pursuit of racial justice raises many new questions and opportunities, the scaffolding for such work …

Explaining Florida Man, Ira P. Robbins

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"Florida Man" is a popular cultural phenomenon in which journalists report on Floridians'unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people's attention nationwide. Florida man is one of the latest unique trends to come from the Sunshine State and contributes to Florida's reputation as a quirky place.

Explanations for Florida Man center on Florida'sPublic Records Law, which is known as one of the most expansive open records laws in the country. All states and the District …

Keynote Prosecutors And Race: Responsibility And Accountability, Angela J. Davis

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Thank you so much, Madeline. I want to thank the Rutgers University Law Review and the Rutgers Center on Criminal Justice, Youth Rights, and Race for inviting me to participate in this very important symposium on Prosecutors, Power, and Racial Justice: Building an Anti-Racist Prosecutorial System. I want to give a special thanks to Professor Cohen and Gisselly, and all of the students who worked so hard to put the symposium together. It's such an important topic. I appreciate your interest, and [I] am particularly thankful to all of you [who] are here on this Friday afternoon to talk about …

Facial Recognition And The Fourth Amendment, Andrew Ferguson

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Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say …

Introduction, Angela J. Davis

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An Introduction by Angela J. Davis Distinguished Professor of Law, American University Washington Collge of Law

The scourge of mass incarceration has plagued the United States for decades. With roughly 2.3 million people in federal and state prisons and close to 7 million people under some form of criminal justice control' in prison or jail or on probation and parole-this country maintains the unenviable status of having the highest incarceration rate in the world. Demands for reform have come in fits and starts, resulting in modest changes that have done little to reduce the number of people incarcerated or under …

Fall 2017 Symposium: The Challenge Of Crime In A Free Society: Fifty Years Later, Roger Fairfax

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My longstanding interest in the Johnson Crime Commission traces back to my earlier scholarly work on the history of criminal law reform movements, going back to the progressive criminal justice reform agenda in the early twentieth century and the activities of private law-reform coalitions and government-sponsored crime commissions during the interwar period, including the Wickersham Commission and the American Law Institute's various model code projects. This research eventually led me to the Johnson Commission, the subject of this Symposium.

The Grand Jury's Role In The Prosecution Of Unjustified Police Killings - Challenges And Solutions, Roger Fairfax

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One of the most profound tests of trust in a society is when the state must be relied upon to hold itself accountable for violating the rights of the governed. Nowhere is this more true than in the context of the prosecution of law enforcement officers for unjustified violence against civilians. The reasons for this are twofold. First, it should go without saying that police perform a vital - and extremely difficult and dangerous - function, and bravely serve as the prophylactic between civil society and complete chaos. As President Obama recently wrote, "[p]olice officers are the heroic backbone of …

Thinking Outside The Jury Box: Deploying The Grand Jury In The Guilty Plea Process, Roger Fairfax

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There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining.'Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in …

The Big Data Jury, Andrew Ferguson

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This article addresses the disruptive impact of big data technologies on jury selection.Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.Big data has the potential to remedy these existing limitations and …

Should The American Grand Jury Survive Ferguson, Roger Fairfax

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The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax

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When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …

Teaching The Methods Of White-Collar Practice: Investigatios, Roger Fairfax

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When Ijoined the George Washington University Law School [GW] faculty after practice as a federal prosecutor and white-collar criminal defense attorney, I quickly learned that a GW law student interested in exploring white-collar crime had a great many courses from which to choose. Several of my full-time colleagues teach courses that cover various topics relevant to white-collar crime, including a computer crimes course, a course in criminal tax litigation, and courses on anti-corruption in government contracting and the Foreign Corrupt Practices Act [FCPA]. GW is also fortunate to have a dedicated and talented adjunct faculty, which includes a former senior …

Trial By Google: Judicial Notice In The Information Age, Andrew Ferguson

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This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that …

Constitutional Culpability: Questioning The New Exclusionary Rules, Andrew Ferguson

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This article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice.Once an automatic remedy for any constitutional violation, the exclusionary rule, now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the …

Searching For Solutions To The Indigent Defense Crisis In The Broader Criminal Justice Reform Agenda, Roger Fairfax

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As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, …

The "Smart On Crime" Prosecutor, Roger Fairfax

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"Smart on Crime" criminal justice reforms have emerged in recent years as shrinking government budgets and exploding incarceration rates have prompted scrutiny of the efficiency and efficacy of existing criminal justice approaches. Policymakers across the country have sought out new strategies designed to prevent crime and recidivism, enhance community safety, reduce our reliance on incarceration, and save taxpayer dollars. As a result, law enforcement, courts, and correctional agencies have been implementing innovative approaches in areas such as diversion, problem-solving courts, alternatives to incarceration, and ex-offender re-entry. However, the role of prosecutors and prosecutorial agencies in this story is often overlooked. …

Challenges And Choices In Criminal Law Course Design Commentary Symposium: Criminal Law Pedagogy, Roger Fairfax

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I thoroughly enjoy every course in my teaching package, but the first-year Criminal Law course occupies a special place in my heart. The subject matter in the Criminal Law course is perhaps the most compelling of any offered in the first-year curriculum. As such, it provides Criminal Law instructors the tremendous opportunity to capture the imagination of students and to highlight the nexus between law in books and law in action.

Batson's Grand Jury Dna, Roger Fairfax

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Batson v. Kentucky was a landmark decision imposing constitutional restrictions on peremptory challenges in the petit jury selection process. Batson was a culmination of a long line of cases addressing racial discrimination in jury selection. However, the role of anti-discrimination doctrine in grand jury selection is often overlooked when the story of Batson is considered. Many of the key equal protection cases underpinning the Batson decision were grand jury cases. Furthermore, the evidentiary framework applied to challenges to race-based peremptory strikes in Batson was forged in a century's worth of grand jury discrimination doctrine. This Essay, prepared for the "Batson …

Predictive Policing And Reasonable Suspicion, Andrew Ferguson

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Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

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his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger Fairfax

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The grand jury is a "much maligned" organ of the criminal justice system.' Regularly employed in only about half of the states and grudgingly tolerated in the federal system,2 the American grand jury for two centuries has been criticized as costly, ineffective, overly-compliant, and redundant. Prescriptions have ranged from reforms designed to improve the grand jury's performance of its traditional filtering and charging functions to the outright abolition of the grand jury. Consequently, much of the scholarly defense of the grand jury seemingly has done little more than attempt to justify its very existence.

This Article seeks to take the …

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

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From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger Fairfax

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Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees-the Sixth Amendment right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the …