Law Commons^™

Teaching Case Theory, Binny Miller

Articles in Law Reviews & Other Academic Journals

As the key means of framing a case, case theory is the central problem that lawyers confront in constructing a case, and many of the decisions made during the life of a case are decisions that rest on case theory. Building on the author's earlier scholarship on case theory, this essay articulates a concept of case theory called "storyline," and sets out a framework for teaching this concept. The framework for this process has three basic stages - imagining case theory, evaluating (and constructing) case theory, and choosing case theory. The material for this process is stories, which are the …

Courts Without Court, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

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, …

War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

On May 24, 20022, the Washington Post carried front-page news that a court in Ukraine had sentenced a 21-year-old Russian soldier, Vadim Shishimarin, to life imprisonment for the war crime of premeditated murder of a civilian, 62-year-old Oleksandr Shelipov. The session was the first war crimes trial in Ukraine since Russia's invasion three months earlier.

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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 …

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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 …

Who Gets To Make A Living? Street Vending In America, Joseph Pileri

Articles in Law Reviews & Other Academic Journals

Street vending has long provided those at the margins of American society with the opportunity for economic advancement. A key segment of the informal economy, street vending has low barriers of entry and attracts entrepreneurs who lack the resources, ability, or desire to start brick-and-mortar businesses or work for someone else. Street vending also contributes to the vitality and safety of urban America.

Despite the pivotal role that street vending plays, cities around the country criminalize vending by treating the violation of street vending regulations as a criminal offense. Recent high-profile vendor arrests in New York City and Washington, DC …

Explaining Florida Man, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

"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

Articles in Law Reviews & Other Academic Journals

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 …

Racial Disparities Inherent In America's Fragmented Parole System, Olinda Moyd

Articles in Law Reviews & Other Academic Journals

This global health crisis has proven to be an equal opportunity discloser, in that it has spotlighted the layers of inequities and racial disparities so engrained in America’s structural systems. Nowhere else is this more evident than in our criminal legal system, where justice is often austere for African Americans. The ghastly statistics of the number of people confined in jails and prisons do not fully capture the scope and extensive reach of those swept up in our legal system. It is estimated that about 4-5 million people are on community supervision, to include probation and parole, which far outnumber …

Sham Subpoenas And Prosecutorial Ethics, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Prosecutors are given broad freedom to conduct their investigations through-out the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.Unlike law enforcement officials who may use deceptive tactics throughout an investigation, prosecutors are subject to professional rules of responsibility. All lawyers are subject to some variation of Rule 4.2 of the Model Rules of Professional Responsibility—the No-Contact Rule—which prohibits a lawyer from communicating with a represented individual. Prosecutors, however, have escaped the Rule’s reach by communicating with represented individuals through …

Introduction, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

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 …

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Articles in Law Reviews & Other Academic Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Articles in Law Reviews & Other Academic Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

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

Articles in Law Reviews & Other Academic Journals

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.

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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 …

Should The American Grand Jury Survive Ferguson, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

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

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Expunging America's Rap Sheet In The Information Age, Jenny Roberts

Articles in Law Reviews & Other Academic Journals

"Getting a Second Chance After a Criminal Record.", "Want to Expunge Your Record?', "South Carolina Debating If It Should be Easier to Expunge a Brush with the Law." "Making a Fresh Start in Little Village." These are only some of the headlines of newspaper articles and television segments that came up in a Google Alert for "expungement" during one typical week in late 2014. The same week, in Cincinnati, Ohio, city council members backed expungement of low-level marijuana convictions. Expungement news that week was not limited to the United States. In Jamaica, the legislature passed a bill that allows expungement …

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

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 …

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

Articles in Law Reviews & Other Academic Journals

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

Articles in Law Reviews & Other Academic Journals

"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. …