Law Commons^™

Recovering Feminist Lessons From The Past For A Less Carceral Future, Aziza Ahmed

Faculty Scholarship

In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with …

Rewriting Whren V. United States, Devon W. Carbado, Jonathan Feingold

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Brief For The Navajo Nation, Ute Mountain Ute Tribe, Southern Ute Tribe, The Crow Nation, And Cheyenne River Sioux Tribe As Amici Curiae Supporting Respondent, Paul Spruhan

Faculty Scholarship

The Navajo Nation, the Ute Mountain Ute Tribe, the Southern Ute Tribe, the Crow Nation, and the Cheyenne River Sioux Tribe submit this amicus brief in support of Respondent Castro-Huerta.1 The signatory tribes do so to contest the State of Oklahoma’s argument that states have inherent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian Country. Amici curiae are signatories to “Peace Commission” treaties with the United States that affirm tribal sovereignty over their territory to the exclusion of the states, with the federal government assuming the responsibility to arrest and prosecute non-Indian “bad men” who commit offenses …

The Color Of Justice, Alexis Hoag

Faculty Scholarship

No abstract provided.

State Attorneys General And The Public Nuisance Doctrine: Lessons To Be Derived From State Ex Rel. Attorney General Of Oklahoma V. Johnson & Johnson, John S. Baker Jr, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

The Fiction Of Nfts And Copyright Infringement, Emily T. Behzadi

Faculty Scholarship

In the first quarter of 2021, the sales of art in the form of Non-Fungible Tokens (“NFTs”) reached over $200 billion dollars. The arrival of NFTs in the mainstream art market has profoundly shaped the way artists exploit their works. This sensational boom has attracted some of the world's biggest names across pop culture and sports, including celebrities such as Snoop Dogg, Paris Hilton, Post Malone, Tom Brady and Rob Gronkowski, to create their own NFT art. Director Quentin Tarantino has also capitalized on this craze through the creation of an NFT collection based on the film Pulp Fiction. However, …

Sharing Your Home With Strangers: Common-Interest Ownership And Financing Options, Debra Bechtel, Crystal Liu, Ernira Mehmetaj, David Reiss

Faculty Scholarship

No abstract provided.

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson

Faculty Scholarship

Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: …

Reclaiming Equality: How Regressive Laws Can Advance Progressive Ends, Jonathan Feingold

Faculty Scholarship

Since the fall of 2020, right-wing forces have targeted Critical Race Theory ("CR T') through a sustained disinformation campaign. This offensive has deployed anti-CRT rhetoric to justify a host of "Backlash Bills" designed to chill conversations about race and racism in the classroom. Concerned stakeholders have assailed these laws as morally bankrupt and legally suspect. These responses are natural and appropriate. But challenging a bill's moral or legal mooring is insufficient to counter a primary purpose of this legislative onslaught: to further erode, within our public discourse and collective consciousness, the ability to distinguish between racism and antiracism. To meet …

Second Amendment Realism, Michael Ulrich

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court declared a constitutionally protected individual right to keep and bear arms. Subsequently, the scope of the right has been hotly debated, resulting in circuit splits and lingering questions about what, exactly, the right entails. Despite these splits, the Court has denied certiorari to the myriad gun cases to land on its doorstep. But the balance of the Court has shifted, and likely, too, its willingness to hear these cases. Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With a constitutional challenge inevitable given …

Tax Complexity And Technology, David I. Walker

Faculty Scholarship

The Federal Income Tax Code has become increasingly complex over time with the implication that many taxpayers no longer understand the connection between their life decisions and their taxes. Some commentators have suggested that increasing computational complexity may be attributable in part to the proliferation of tax preparation software that renders such complexity manageable at filing time, but otherwise does nothing to mitigate the "black box" nature of the tax system. While such complexity and opacity undercut explicit incentives embedded in the Code, make planning more difficult, and undermine political accountability for taxes, they may also reduce the inefficient distortion …

The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack M. Beermann, Gary S. Lawson

Faculty Scholarship

In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state's electoral votes are unconstitutional. …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baradaran Baughman, Christopher Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Sprinting A Marathon: Next Steps For Gender Equity In Criminal Law Employment, Maryam Ahranjani

Faculty Scholarship

In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention, and promotion of women criminal lawyers. Sprinting a Marathon follows up on the initial findings of the TF as published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine and on the ABA Criminal Justice Section website. This Article describes the results of a survey of diverse criminal lawyers and judges conducted at the end of 2020, as well …

A Book Club With No Books: Using Podcasts Movies, And Documentaries To Increase Transfer Of Learning, Incorporate Social Justice Themes, Create Community, And Bolster Traditional And Character-Based Legal Skills During A Pandemic, Marni Goldstein Caputo, Kathleen Luz

Faculty Scholarship

In the fall of 2020, students entered law school under extreme circumstances. The COVID-19 pandemic led to isolation, depression, and restrictions on activities. A new hybrid learning environment was created. Social upheaval also caused unease. The 2020 national elections loomed, bringing divisive political discourse. The murder of George Floyd and other BIPOC, at the hands of police, led to a reckoning around the country. Additionally, with the COVID-19 pandemic came a rash of anti-Asian violence.

Faced with these unprecedented realities, we, as legal educators, struggled with how to adapt our curriculum to this new normal. These realities forced us to …

Are People In Federal Territories Part Of “We The People Of The United States”?, Gary S. Lawson, Guy Seidman

Faculty Scholarship

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the …

The Economic (In) Significance Of Executive Pay Esg Incentives, David I. Walker

Faculty Scholarship

The hottest topic in corporate governance circles today involves company commitments to and pursuit of ESG (environmental, social, and governance) initiatives in addition to the traditional pursuit of profits. One facet of this debate has to do with how to motivate executives to pursue ESG goals. Increasingly, companies tie executive pay to ESG performance, although even strong ESG advocates debate the advisability of doing so. This Article joins the fray by closely examining ESG-based CEO pay arrangements at a subset of companies with leadership positions on the Business Roundtable, an industry trade group that embraced ESG in a 2019 statement …

Stated Culpability Requirements, Scott England

Faculty Scholarship

This Article comprehensively reviews the law of stated culpability requirements in Model Penal Code (MPC) jurisdictions. Part I provides an overview of section 2.02(4), explaining how the provision works and its role in the MPC’s culpability scheme. Part II then identifies section 2.02(4)’s main weaknesses, drawing on both the provision itself and the Code’s commentary. Next, Part III reviews the law in the twenty-five states with culpability provisions influenced by the MPC, identifying specific problems that section 2.02(4) has created in the case law. Finally, Part IV recommends new stated-culpability rules that improve section 2.02(4) and more rigorously enforce the …

If You Draw It, Students Learn It: An Approach To Teaching Contracts And Other Doctrinal Courses, Paul Figueroa

Faculty Scholarship

Spring 2019 was my first semester as a tenure-stream law professor. That semester I taught Legal Remedies and Contracts II—two subjects that overlap in their coverage of contract damages. I felt very comfortable teaching contracts, given my nearly twenty years of experience on contractual matters in both the private and public sectors. My first few classes went well, which validated my initial confidence. However, my optimism about the semester evaporated when I attempted to teach the parol evidence rule (“PER”).1 It was a Monday, and before starting my Contracts II class I asked the students, “How was the weekend?” followed …

Moving Law Schools Forward By Design: Designing Law School Curricula To Transfer Learning From Classroom Theory To Clinical Practice And Beyond, April Land, Aliza Organick

Faculty Scholarship

Calls for reform of legal education are long-standing and have been renewed with vigor and an increasing demand for “practice-ready” lawyers. As part of these reforms, changes to the American Bar Association Standards have been made that now require law schools to provide experiential learning opportunities, to define specific objectives, and to show that students are making progress toward those objectives. A rapidly developing area of study regarding professional identity formation stresses the importance of supporting and guiding students through experiential learning throughout the course of law school. Additionally, as part of its accreditation process, the ABA will now evaluate …

Evaluating Legal Needs, Luz E. Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas––a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, and barriers …

The Gender Pay Gap And High-Achieving Women In The Legal Profession, Milan Markovic, Gabrielle Plickert

Faculty Scholarship

Although women have made significant strides in the legal profession, female attorneys continue to earn far less than male attorneys. Relying on survey data from a large sample of full-time attorneys in Texas, we find a gender pay gap of thirty-five thousand dollars at the median that cannot be explained by differences in human capital or occupational segregation. We also provide evidence that the legal market especially disadvantages women who excel in law school. Whereas high academic achievement boosts male lawyers’ incomes substantially, it does not have the same effect on female lawyers’ incomes. High-achieving female lawyers earn less than …

The Original Meaning Of “Due Process Of Law” In The Fifth Amendment, Max Crema, Lawrence B. Solum

Faculty Scholarship

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase …

Jurisdictional Elements And The Jury, G. Alexander Nunn

Faculty Scholarship

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, …

No Hiding From Justice: Universal Jurisdiction In Domestic Courts, Heidi R. Gilchrist

Faculty Scholarship

No abstract provided.

Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin L. Sheley

Faculty Scholarship

Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminal defenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological …

Reimagining Sovereignty To Protect Migrants, Pooja R. Dadhania

Faculty Scholarship

The concept of sovereignty in international law allows states to exclude and expel most categories of migrants, subject only to very narrow exceptions from international human rights and refugee law. Inverting the state sovereignty paradigm traditionally used to exclude migrants, this Essay reimagines sovereignty to protect migrants by drawing on the international law doctrine of state responsibility. The doctrine of state responsibility requires states to remedy the consequences of their actions in violation of international law. States that violate the sovereignty of other states, more specifically their territorial integrity or political independence, and thereby cause forced migration should have an …

Timeout For Sports Trademark Overprotection: Comparing The United States, European Union, And United Kingdom, Jodi S. Balsam

Faculty Scholarship

No abstract provided.

From Pandemic To Pedagogy: Teaching The Technology Of Lawyering In Law Clinics, Sarah R. Boonin, Luz E. Herrera

Faculty Scholarship

The COVID-19 pandemic has transformed the nation’s approach to work and learning. Law schools, law firms, courts, and administrative agencies abruptly closed their offices and quickly reimagined how to perform their daily functions remotely. Many of these institutions have plans to maintain aspects of remote operations and services post-pandemic. With this in mind, the authors of this Article conducted a survey of law school clinical faculty during the winter of 2021 to better understand how clinicians pivoted their instruction and practice using technology during the pandemic. The authors use the survey results to show how the COVID-19 experience positions clinical …