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Articles 1 - 26 of 26
Full-Text Articles in Law
“Black First, Children Second”: Why Juvenile Life Without Parole Violates The Equal Protection Clause, Avery W. Katz
“Black First, Children Second”: Why Juvenile Life Without Parole Violates The Equal Protection Clause, Avery W. Katz
Faculty Scholarship
The United States is the only country in the world that allows imposition of juvenile life without parole (LWOP) sentences. This sentencing scheme was born out of the 1990’s “tough on crime” era, when society held the belief that juvenile offenders were “super-predators” and should face adult time for adult crimes. Throughout the years, the Supreme Court has faced numerous cases regarding juvenile LWOP, leading to its 2021 Jones v. Mississippi decision, holding that juveniles may be sentenced to LWOP so long as “youthful qualities,” such as immaturity, recklessness, susceptibility to negative influence, are first considered in sentencing. Today, the …
Criminalized Students, Reparations, And The Limits Of Prospective Reform, Amber Baylor
Criminalized Students, Reparations, And The Limits Of Prospective Reform, Amber Baylor
Faculty Scholarship
Recent reforms discourage schools from referring students to criminal law enforcement for typical disciplinary infractions. Though rightly celebrated, these reforms remain mere half-measures, as they emphasize prospective decriminalization of student conduct without grappling with the harm to generations of former students – disproportionately Black – who have been targeted by criminalizing policies of the past. Through the lens of reparations theory, this Article sets out the case for retroactive and reparations-based redress for the criminalization of students. Reparations models reposition moral norms. They acknowledge state harm, clarify the losses to criminalized students, allow for expansive forms of redress, and cast …
Profiling And Consent: Stops, Searches, And Seizures After Soto, Jeffrey A. Fagan, Amanda Geller
Profiling And Consent: Stops, Searches, And Seizures After Soto, Jeffrey A. Fagan, Amanda Geller
Faculty Scholarship
Following Soto v. State (1999), New Jersey was the first state to enter into a Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New Jersey Turnpike …
Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell
Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell
Faculty Scholarship
Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …
Why We Need Police, Justin Mccrary, Deepak Premkumar
Why We Need Police, Justin Mccrary, Deepak Premkumar
Faculty Scholarship
This chapter discusses the essential role that the police have in deterring and reducing crimes, particularly the most violent and costly ones to society, such as murder. We begin by providing a brief overview of deterrence theory before discussing the empirical evidence on the efficacy of police staffing and various policing strategies on crime reduction. Using a framework developed in Weisburd and Eck (2004), we quickly evaluate the model of standard policing and then mainly focus on evidence behind three current policing practices: hot spots, problem- oriented, and proactive. Finally, we use the empirical evidence of police staffing to provide …
Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan
Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan
Faculty Scholarship
The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied …
The “Protection Of The Competitive Process” Standard, Tim Wu
The “Protection Of The Competitive Process” Standard, Tim Wu
Faculty Scholarship
The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”
New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash
New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash
Faculty Scholarship
In popular and political culture, many observers credit nearly twenty-five years of declining crime rates to the “New Policing.” Breaking with a past tradition of “reactive policing,” the New Policing emphasizes advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. The existing research and scholarship on these developments have focused mostly on the nation’s major cities, where concentrated populations and elevated crime rates provide pressurized laboratories for police experimentation, often in the spotlight of political scrutiny. An additional line of scholarship has looked more closely at how the tactics of the New Policing have …
The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan
The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan
Faculty Scholarship
In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …
National Security Federalism In The Age Of Terror, Matthew C. Waxman
National Security Federalism In The Age Of Terror, Matthew C. Waxman
Faculty Scholarship
National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …
Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan
Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan
Faculty Scholarship
Immigration and crime have received much popular and political attention in the past decade, and have been a focus of episodic social attention for much of the history of the U.S. Recent policy and legal discourse suggests that the stigmatic link between immigrants and crime has endured, even in the face of evidence to the contrary. This study addresses the relationship between immigration and crime in urban settings, focusing on areal units where immigrants tend to cluster spatially as well as socially. We ask whether immigration creates risks or benefits for neighborhoods in terms of lower crime rates. The question …
Complexity Of School-Police Relationships Challenge Special Needs Doctrine, Joshua Gupta-Kagan
Complexity Of School-Police Relationships Challenge Special Needs Doctrine, Joshua Gupta-Kagan
Faculty Scholarship
On November 5, 2003, concern regarding suspected drug activity led to a massive police search of Stratford High School in the Berkeley School District, north of Charleston, South Carolina. (See Police, School District Defend Drug Raid, available at http://www.cnn.com/2003/US/South/11/07/school.raid/index.html.) Fourteen police officers assumed strategic positions inside and outside the school. Accompanied by a drug-sniffing clog, officers. Some with guns drawn, secured a school hallway and ordered more than I 00 students to get on their knees and face the wall, handcuffing at least 12 who failed to immediately obey the police orders. Alerted by the clog. police physically searched students, …
Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz
Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz
Faculty Scholarship
Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …
The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt
The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt
Faculty Scholarship
The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science, is …
Incomplete Law, Katharina Pistor, Chenggang Xu
Incomplete Law, Katharina Pistor, Chenggang Xu
Faculty Scholarship
This Article develops a framework for analyzing the relation between basic features of statutory and case law and the design and functioning of institutions that enforce this law. The basic premise is that law is inherently incomplete and that this has important implications for law enforcement. In particular, when law is incomplete, special emphasis needs to be placed on the allocation of lawmaking and law enforcement powers (LMLEP) to different institutions such as legislatures, courts, or regulators, in order to attain optimal levels of law enforcement. Using the development of the legal framework governing financial markets as an example to …
Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman
Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman
Faculty Scholarship
This Article seeks to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. After considering the virtues and pitfalls of both hierarchical and coordinate organizational modes, the Article offers a normative model that views prosecutors and agents as members of a "working group," with each side monitoring the other. It concludes by exploring how this model can be furthered or frustrated with various procedural and structural changes.
From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt
From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt
Faculty Scholarship
Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. …
"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman
"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman
Faculty Scholarship
With each report of violent crime statistics (whether rising or falling) or of the latest firearms outrage, we hear the antiphony of the gun control debate. Advocates of increased federal regulation decry the inadequacies of a regime that permits relatively free access to firearms and argue that the availability of guns is itself a spur to more deadly violence. Advocates of minimal regulation, for their part, condemn measures that, they say, will primarily penalize law-abiding citizens, and instead call for more vigorous enforcement of existing laws, targeting "criminals," not their weapons. When the antiphony intrudes on funerals, the effect can …
Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor
Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor
Faculty Scholarship
This paper analyses changes in the legal protection of shareholder and creditor rights in 24 transition economies from 1990 to 1998. It documents differences in the initial conditions and a tendency towards convergence of formal legal rules as the result of extensive legal reforms. Convergence seems to be primarily the result of foreign technical assistance programs as well as of harmonisation requirements for countries wishing to join the European Union. The external supply of legal rules not withstanding, the pattern of legal reforms suggests that law reform has been primarily responsive, or lagging, rather than leading economic development. In comparison, …
Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt
Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt
Faculty Scholarship
The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …
Sanctions Against Perpetrators Of Terrorism, Lori Fisler Damrosch
Sanctions Against Perpetrators Of Terrorism, Lori Fisler Damrosch
Faculty Scholarship
Since the title for this panel is "Presidential Uses of Force and Other Sanction Strategies," I will begin with "other sanction strategies" – that is, other than use of force. I would rather not be cast in the role of the dove on the panel to comment on illegitimacy of uses of force (presidential or otherwise), because I do not want to rule out or necessarily oppose presidential uses of force for counter-terrorism purposes in all circumstances. Indeed, I find myself in considerable agreement with Professor Reisman's lecture. Although I have disagreed with some of his writings and positions on …
The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman
The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman
Faculty Scholarship
From the very beginning, almost everyone familiar with the sentencing guidelines has recognized that substantial assistance motions pose a severe threat to the goal of horizontal equity in sentencing. The problem stems in part from the fact that any scheme using sentencing leniency to reward cooperation reduces the likelihood that two defendants of similar culpability and criminal history will receive the same sentence if one cooperates and the other doesn't. The damage, however, is potentially magnified by the particular system established by the federal guidelines: The absence of clear guidelines as to how cooperators should be treated makes it likely …
Searching For The Rule Of Law In The Wake Of Communism, George P. Fletcher
Searching For The Rule Of Law In The Wake Of Communism, George P. Fletcher
Faculty Scholarship
Of all the dreams that drive men and women into the streets, the "rule of law" is the most curious. We have a pretty good idea of what we mean by "free markets" and "democratic elections." But legality and the "rule of law" are ideals that are opaque even to legal philosophers. Thus, we have reason to puzzle whether political changes in Eastern Europe represent a renewed commitment to the rule of law. What constitutes living under the rule of law after Communism? What would count as achieving "a-state-based-on-law" – to use an expression popular in the last days of …
How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch
How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch
Faculty Scholarship
The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …
The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.
The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.
Faculty Scholarship
Just as war is too important to be left to generals, civil procedure – with apologies to Clemenceau – is too important to be left to proceduralists. Although it would be a serious overstatement to claim that all civil procedure scholars are confined by a tunnel vision focused only on the Federal Rules of Civil Procedure, they have as a group been reluctant to engage explicitly in incentive-based reasoning and seem particularly hesitant to reexamine what they must know to be a noble myth: namely, that the client can and should control all litigation decisions. Within an important and expanding …
Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch
Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch
Faculty Scholarship
In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of …