Law Commons^™

Kassouf-The Sixth Circuit's Misguided Attempt To Rein In The Irs, Brian Valcarce

Journal of Criminal Law and Criminology

The omnibus clause of 26 U.S.C. § 7212(a) is a catch-all provision that broadly punishes people who corruptly endeavor to obstruct administration of the Internal Revenue Code. The Sixth Circuit, in United States v. Kassouf, improperly limited conviction under the omnibus clause to cases where the defendant had knowledge of a pending IRS investigation (a nexus test). The Sixth Circuit is the only circuit today applying this rule, with most others expressly or impliedly rejecting it. Even though the Sixth Circuit is an outlier in applying a nexus test, there has been pervasive discussion of the issue recently. There has …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

The Effects Of Body-Worn Cameras On Police Activity And Police-Citizen Encounters: A Randomized Controlled Trial, Anthony A. Braga, William H. Sousa, James R. Coldren, Jr., Denise Rodriguez

Journal of Criminal Law and Criminology

Many have suggested that placing body-worn cameras (BWCs) on police officers improves the civility of police-citizen encounters and enhances citizen perceptions of police transparency and legitimacy. In response, many police departments have adopted this technology to address public concerns over the quality of policing in their communities. The existing program evaluation evidence on the intended and unintended consequences of outfitting police officers with BWCs is still developing, however. This study reports the findings of a randomized controlled trial involving more than 400 police officers in Las Vegas, Nevada. We find that officers equipped with body-worn cameras generated fewer complaints and …

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis Of The Role Of Racial Bias In Bond Decisions And Ideas For Reform, Lydette S. Assefa

Journal of Criminal Law and Criminology

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such …

Principles Of Pretrial Release: Reforming Bail Without Repeating Its Harms, Brook Hopkins, Chiraag Bains, Colin Doyle

Journal of Criminal Law and Criminology

Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls.

This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. …

Toward A Just Model Of Pretrial Release: A History Of Bail Reform And A Prescription For What's Next, Alexa Van Brunt, Locke E. Bowman

Journal of Criminal Law and Criminology

The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain …

Pre-Imprisonment Employment Drops: Another Instance Of The Ashenfelter Dip?, Charles E. Loeffler

Journal of Criminal Law and Criminology

A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.

Rationalizing Rational Basis Review, Todd W. Shaw

Northwestern University Law Review

As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.

But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this …

Due Process Abroad, Nathan S. Chapman

Northwestern University Law Review

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause—the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, or property”—remains obscure.

Up to now, scholars …

Ocr's Bind: Administrative Rulemaking And Campus Sexual Assault Protections, Sheridan Caldwell

Northwestern University Law Review

During President Barack Obama’s Administration, significant light was shed on the depth of the United States’ campus sexual assault problem. As a result, the Department of Education’s Office for Civil Rights increased enforcement of Title IX provisions by way of its 2011 “Dear Colleague Letter.” This Note argues that the Dear Colleague Letter was improperly enforced as if it were a formal legislative rule and was therefore illegitimate. Nevertheless, this Note contends that the preponderance of the evidence standard initially enshrined within the Dear Colleague Letter should be adopted through the notice-and-comment procedures President Donald Trump’s Administration promises in order …

The Fragility Of The Free American Press, Ronnell Andersen Jones, Sonja R. West

Northwestern University Law Review

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on …

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Northwestern University Law Review

This Article provides a framework for analyzing side agreements among stakeholders in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by a stakeholder to remain silent—to waive some procedural right they would otherwise have under the Bankruptcy Code—at potentially crucial points in the reorganization process.

Using simplified examples, we show that side agreements create benefits in some instances. But, in other cases, parties to a side agreement may attempt to extract value from nonparties to the agreement by contracting for specific performance or excessive stipulated damages that impose negative …

Water Security, Rhett B. Larson

Northwestern University Law Review

Climate change, as the dominant paradigm in natural resource policy, is obsolete and should be replaced by the water security paradigm. The climate change paradigm is obsolete because it fails to adequately resonate with the concerns of the general public and fails to integrate fundamental sustainability challenges related to economic development and population growth. The water security paradigm directly addresses the main reasons climate change ultimately matters to most people—droughts, floods, plagues, and wars. Additionally, this new proposed paradigm better integrates climate change concerns with other pressing global sustainability challenges—including that economic development and population growth will require 50% more …

Sovereign Preemption State Standing, Jonathan Remy Nash

Northwestern University Law Review

When does a state have standing to challenge the Executive Branch’s alleged underenforcement of federal law? The issue took on importance during the Obama Administration, with “red states” suing the Executive Branch over numerous issues, including immigration and health care. The question of state standing has already appeared in important litigation during the first months of the Trump Administration, only with the political orientation of the actors reversed.

This Article argues in favor of sovereign preemption state standing, under which a state would enjoy Article III standing to sue the federal government when (1) the federal government preempts state law …

Human Trafficking And Pornography: Using The Trafficking Victims Protection Act To Prosecute Trafficking For The Production Of Internet Pornography, Allison J. Luzwick

Northwestern University Law Review

The Trafficking Victims Protection Act of 2000 (TVPA) was passed to “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.”1 Since the passing of the Act, federal courts have construed the statute broadly to achieve this stated purpose. One way in which the TVPA has been underutilized, however, is in prosecuting pornography cases. Pornography enjoys wide latitude under the law, protected by a vast net of First Amendment protections. While these protections may preserve freedom of speech, they do nothing …

End The Bloody Taxation: Seeing Red On The Unconstitutional Tax On Tampons, Victoria Hartman

Northwestern University Law Review

Why was there so much activism in the United States, and across the world, to end the tampon tax in 2016? This Note situates the movement to end the tampon tax within a broader history of feminist activism related to tampons and menstruation. It also analyzes the constitutional dimensions of the tax on feminine hygiene products and serves as a litigation guide for plaintiffs claiming that a state, city, or county sales tax on feminine hygiene products violates the Equal Protection Clause. Lastly, this Note demonstrates the hardships women face paying this tax and encourages state legislatures and city councils …

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the …

Looking At Justice Through A Lens Of Healing And Reconnection, Annalise Buth, Lynn Cohn

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Expanding Our Conception Of Justice

Northwestern Journal of Law & Social Policy

No abstract provided.

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler

Northwestern Journal of Law & Social Policy

No abstract provided.

Reforming The Ranks: Policy Initiatives To Ensure Police Accountability & Improve Police And Community Relations

Northwestern Journal of Law & Social Policy

No abstract provided.

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.

Building Movement: Racial Injustice, Transformative Justice And Reimagined Policing

Northwestern Journal of Law & Social Policy

No abstract provided.

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Professor Destiny Peery

Northwestern Journal of Law & Social Policy

No abstract provided.

Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety

Northwestern University Law Review

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.

Corporate Family Law, Allison Anna Tait

Northwestern University Law Review

There is no such thing as corporate family law. But there are corporate families, and corporate families fight. What happens when corporate family members fight and the conflict is so severe that one or more of the parties wants out of the corporate relationship? Corporate law provides some solutions, but they are shaped by the assumption that all parties will bargain effectively for protections when seeking to exit a corporate relationship. Under this theory, family business is, after all, just business. The problem with this assumption is that corporate family members do not bargain the way that corporate law expects. …

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar

Northwestern University Law Review

This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.

The Reverse-Commandeering System: A Better Way To Distribute State And Local Authority, Joseph Zelasko

Northwestern University Law Review

Current regimes for distributing state and local authority have two primary flaws: (1) they unnecessarily restrict local authority by preventing local governments from passing private laws, and (2) they often require local ordinances to be enforced in state courts, thereby depriving local governments of the ability to interpret their own laws and requiring states to pay the judicial costs of local policy preferences. This Note suggests a new means of distributing state and local authority designed to address these two deficiencies: the reverse-commandeering system. The reverse-commandeering system would not distinguish between local authority to pass public and private laws. Instead, …

Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman

Northwestern University Law Review

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and …