Law Commons^™

The Co-Evolution Of Marriage And Parental Rights Of Gays And Lesbians, Lisa M. Chauveron, Ariel Alvarez, Bradley Van Eeden-Moorefield

Department of Political Science and Law Faculty Scholarship and Creative Works

Historically, federal and state legislation placed different conditions on same- and opposite-sex couples' ability to marry, adopt, or exercise their parental rights. Given the historical intertwining of marriage and parenting, legal issues remain hinged on differing conceptions of marriage and what constitutes a legal family in the United States, especially for same-sex partners compared to their different-sexed couple counterparts. This article provides a historical review of decisions that serve as the foundation for queer parenting rights in the United States. A key focus is on the impact of the U.S. Supreme Court Obergefell v. Hodges (2015) marriage decision on queer …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …

Lights, Camera, Action: The Images Of Foster Care In The Movies, Ariel Alvarez

Department of Political Science and Law Faculty Scholarship and Creative Works

Movies often reflect public perceptions. The portrayal of foster care in movies provides insight regarding beliefs and attitudes children, parents, and others bring with them as they interact with the foster care system. The study focus was to identify images of foster care portrayed in 37 nondocumentary movies produced in the United States and Canada between 1921 and 2012. Using Framing Theory, an iterative review process was used to derive three dominant images presented to audiences: child entrance into foster care, a broken foster care system, and life in foster care. Movie images generally misrepresented the realities of foster care …

Strict Liability's Criminogenic Effect, Paul H. Robinson

All Faculty Scholarship

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

Structure And Service Delivery Approach Of The Children’S Bureau’S Resource Centers And Implementation Centers, Tammy Richards, Michelle Graef, Kathy Deserly, Peter Watson, Mark Ells

Center on Children, Families, and the Law: Faculty Publications

The Children’s Bureau (CB) provides a system of training and technical assistance (T/TA) to build the capacity of state and tribal child welfare systems, with the goal of improving outcomes for children and families. During the time period of 2008-2014, this infrastructure included ten National Child Welfare Resource Centers (NRCs), five Child Welfare Implementation Centers (ICs), and a Training and Technical Assistance Coordination Center (TTACC). Individual ICs and NRCs differed in structure and content expertise, yet they served the same jurisdictions and at times provided services concurrently. To increase cohesion and consistency, the NRCs, ICs, TTACC, and CB worked together …

The Contribution Of Hugo Chávez To An Understanding Of Post-Neoliberalism, Tony Spanakos, Dimitris Pantoulas

Department of Political Science and Law Faculty Scholarship and Creative Works

When Hugo Chávez was president, he pronounced the death of many things - the constitution, the old "partyarchy," Venezuela's "Fourth Republic," and the Free Trade Area of the Americas, among others. Since his own death in 2013, scholars, activists, and citizens have contributed to a rich discussion of his legacy. Part of that legacy is an understanding of post-neoliberalism that recognizes its competing and contradictory components, some of them seeking to complement, improve, and reverse neoliberal policies or overcome neoliberal logics and others constituting important remnants of neoliberalism.

The Legacy Of Hugo Chávez, Daniel Hellinger, Tony Spanakos

Department of Political Science and Law Faculty Scholarship and Creative Works

Daniel Hellinger and Anthony Petros Spanakos discuss the legacy of Hugo ChaÁvez. In 1992, Lieutenant Colonel Hugo ChaÁvez vez failed to replace the beleaguered government of President Carlos AndreÁs PeÁrez but succeeded in capturing the hearts and imaginations of the population. Six years later, as a candidate for the presidency, ChaÁvez vez won his first of four presidential elections. Upon coming to power, he called for the drafting of a new constitution as part of a process of radical political, economic, and social change in Venezuela. Upon his death in March 2013, ChaÁvez left behind a significant but highly contested …

Deterring Torture: The Preventive Power Of Criminal Law And Its Promise For Inhibiting State Abuses, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

The use of torture in the War on Terror reinvigorated a longstanding debate about how to prevent such human rights violations, and whether they should be criminalized. Using US history as a case study, this article argues that the criminal sanction is likely to be more successful in preventing such abuses than many other often suggested methods. Analyzing thousands of pages of released government documents as an archive leads to the counterintuitive finding that torturers were often deterred, at least momentarily, by fear of criminal liability, and would have been successfully deterred if not for the lack of prior prosecutions.

Bridging The Gap: A Joint Negotiation Project Crossing Legal Disciplines, K. E. Powell, Lauren Bartlett

All Faculty Scholarship

This article discusses the creation and implementation of a cross-discipline negotiation simulation project designed by two law professors at Ohio Northern University Claude W. Pettit College of Law. The project bridged the gap between podium classes and clinical experience, exposing two separate groups of students to new subject areas. Professors Lauren E. Bartlett and Karen Powell brought together two distinct law classes, one doctrinal tax class and one pretrial litigation skills class, to exercise legal skills, and learn substantive and procedural law from their classmates, while acting as an attorney or a client in a simulated negotiation.

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Variation exists in how death examinations take place in the United States. In some counties and states decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner. In other counties and states, an appointed medical professional performs the death examination. We provide preliminary tests of the difference in performance between death examination offices run by appointed medical professionals compared with elected coroners. We find that death examiner offices in elected coroner states are less likely to …

Astroturf Activism, Melinda (M.J.) Durkee

Scholarship@WashULaw

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Faculty Scholarship

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

The Indirect Consequences Of Expanded Off-Label Promotion, Patricia J. Zettler

Faculty Publications By Year

The U.S. Food and Drug Administration’s (FDA) policies have been a battleground for litigation about First Amendment protections for commercial speech. In the last five years, the FDA’s position that “off-label” promotion of approved prescription drugs—when a manufacturer promotes a drug for a use for which the FDA has not approved it—leads to violations of the Federal Food, Drug, and Cosmetic Act has been subject to successful legal challenges. Although the merits of these off-label promotion decisions are well traversed in the literature, this Article explores the potential indirect consequences of recently-recognized protections for off-label promotion. This Article demonstrates that—as …

A Comparison Of Defendants With Mental Illness Represented By Public Defenders And Private Attorneys: An Analysis Of Court-Ordered Pretrial Psychiatric Evaluations, Donald M. Linhorst, P. Ann Dirks-Lindhorst, Susan Mcgraugh, Lauren Choate, Sarah Riley

All Faculty Scholarship

This study compared the characteristics and court-ordered evaluation questions and responses among 4,430 defendants to determine if differences existed between those represented by public defenders and private attorneys when receiving trial competency or responsibility psychiatric evaluations from a state department of mental health. Defendants represented by public defenders were more likely to be younger, to have less education, to have psychotic disorders, to have a history of inpatient psychiatric treatment, to live in urban or rural counties, and to be jailed at the time of the evaluation. In addition, defendants represented by public defenders were less likely to have a …

Predictive Analytics' Punishment Mismatch, Jessica M. Eaglin

Articles by Maurer Faculty

No abstract provided.

Inequality And The Mortgage Interest Deduction, Kyle Rozema, Daniel J. Hemel

Scholarship@WashULaw

The mortgage interest deduction is often criticized for contributing to after-tax income inequality. Yet the effects of the mortgage interest deduction on income inequality are more nuanced than the conventional wisdom would suggest. We show that the mortgage interest deduction causes high-income households (i.e., those in the top 10% and top 1%) to bear a larger share of the total tax burden than they would if the deduction were repealed. We further show that the effect of the mortgage interest deduction on income inequality is highly sensitive to the alternative scenario against which the deduction is evaluated. These findings demonstrate …

The Remaking Of Wall Street, Andrew F. Tuch

Scholarship@WashULaw

This Article critically examines the transformation of the financial services industry during and since the Financial Crisis of 2007–2009. This transformation has been marked by the demise of the major investment banks and the related rise of a set of powerful players known as private equity firms or alternative asset managers – pools of assets structured as private funds. First, this Article argues that private equity firms now mirror investment banks in their mix of activities; ethos of entrepreneurialism, innovation, and risk-taking; role as “shadow banks”; and overall power and influence.

These similarities might suggest that private equity firms pose …

The Limits Of Gatekeeper Liability, Andrew F. Tuch

Scholarship@WashULaw

Gatekeeper liability – the framework under which actors such as law firms, investment banks and accountants face liability for the wrongs committed by their corporate clients – is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces well-recognized flaws: gatekeepers often depend financially on the clients whose conduct they monitor; to carry out their gatekeeping function, gatekeepers rely on individuals – often their employees – whose interests diverge from their own; and major transactions typically involve multiple gatekeepers, each with specific areas of expertise and information, which produces both gaps and overlaps in the gatekeeping …

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

Project Safe Neighborhoods In Chicago: Looking Back A Decade Later, Ben Grunwald, Andrew V. Papachristos

Faculty Scholarship

Project Safe Neighborhoods (PSN) is a federally funded initiative that brings together federal, state, and local law enforcement to reduce gun violence in urban centers. In Chicago, PSN implemented supply-side gun policing tactics, enhanced federal prosecution of gun crimes, and notification forums warning offenders of PSN’s heightened criminal sanctions. Prior evaluations provide evidence that PSN initiatives have reduced crime in the first few years of their operation. But over a decade after the program was established, we still know little about whether these effects are sustained over an extended period of time. This Article examines PSN Chicago, an anti-violence program …

Sexual Misconduct In Prison: What Factors Affect Whether Incarcerated Women Will Report Abuses Committed By Prison Staff?, Sheryl Pimlott Kubiak, Hannah Brenner, Deborah Bybee, Rebecca Campbell, Cristy E. Cummings, Kathleen M. Darcy, Gina Fedock, Rachael Goodman-Williams

Faculty Scholarship

No abstract provided.

Legal Responses To Nonconsensual Pornography: Current Policy In The United States And Future Directions For Research, Cynthia J. Najdowski

Psychology Faculty Scholarship

Technological advances have created new avenues for the perpetration of sexual violence. The widespread availability of cameras has made it easier to take covert recordings of an individual’s intimate body parts, and whether sexually explicit images are recorded with or without an individual’s consent, growing access to the Internet has facilitated the nonconsensual dissemination of those images. Yet criminal laws have not kept pace with technology in most jurisdictions across the United States, and victims of nonconsensual pornography typically have no avenue by which to seek justice. There have been efforts to reform laws in a variety of jurisdictions, some …

Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit

Articles

This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …

Aba Standard 405(C): Two Steps Forward And One Step Back For Legal Education, Peter A. Joy

Scholarship@WashULaw

There has long been opposition to guaranteeing that all full-time law faculty have security of position and participation in faculty governance the same as or substantially similar to tenure. ABA Accreditation Standard 405(c), was meant to provide such security of position and faculty governance for clinical faculty, though this standard has not been consistently interpreted to do so. The situation for legal writing faculty is even more precarious, because the standards only require a law school to provide legal writing faculty with the security of position and other rights necessary to attract and retain well-qualified faculty. As a result, most …

Editorial, Jane L. Ireland, Robert J. Cramer

Community & Environmental Health Faculty Publications

We commence this edition with an invited paper by David DeMatteo, Suraji Wagage, and Jaymes Fairfax-Columbo on cyberstalking. Their paper considers the role of law and public opinion in this rapidly evolving area of study. One of the most interesting findings represents the difference between public opinion and the legal concept of cyberstalking; public opinion does not support the (legal) suggestion that cyberstalking should be considered alongside more general stalking. This reflects a move in the literature more generally that considers cybercrime distinct in many ways from contact offending. Indeed, it parallels considerably with the cyberbullying literature, which some would …

Moral Disengagement In Legal Judgments, Tess M. S. Neal, Robert J. Cramer

Community & Environmental Health Faculty Publications

We investigated the role of moral disengagement in a legally-relevant judgment in this theoretically-driven empirical analysis. Moral disengagement is a social-cognitive phenomenon through which people reason their way toward harming others, presenting a useful framework for investigating legal judgments that often result in harming individuals for the good of society. We tested the role of moral disengagement in forensic psychologists' willingness to conduct the most ethically questionable clinical task in the criminal justice system: competence for execution evaluations. Our hypothesis that moral disengagement would function as mediator of participants' existing attitudes and their judgmentsa theoretical bridge between attitudes and judgmentswas …

Democratizing Criminal Law As An Abolitionist Project, Dorothy E. Roberts

All Faculty Scholarship

The criminal justice system currently functions to exclude black people from full political participation. Myriad institutions, laws, and definitions within the criminal justice system subordinate and criminalize black people, thereby excluding them from electoral politics, and depriving them of material resources, social networks, family relationships, and legitimacy necessary for full political citizenship. Making criminal law democratic requires more than reform efforts to improve currently existing procedures and systems. Rather, it requires an abolitionist approach that will dismantle the criminal law’s anti-democratic aspects entirely and reconstitute the criminal justice system without them.

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

All Faculty Scholarship

In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are …

Dignity Is The New Legitimacy, Jeffrey A. Fagan

Faculty Scholarship

In this chapter, Jeffrey Fagan responds to Jonathan Simon’s essay by exploring the emotional dimensions of individual interactions with state actors. In a procedural justice vein, this chapter considers the dignitary implications of official maltreatment, focusing in particular on the dignity-injuring potential of unjustified, racially motivated, or otherwise abusive police stops. Such interactions not only personally humiliate, but they also deny the targeted individuals “basic and essential recognition” as social and political equals, instilling instead “a profound sense of loss.” Fagan calls for a jurisprudence that “recognizes the emotional highway between dignity and legitimacy.” This approach would “internalize[] the central …