Law Commons^™

Viral Injustice, Brandon L. Garrett, Lee Kovarsky

Faculty Scholarship

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional …

"Slack" In The Data Age, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

This Article examines how increasingly ubiquitous data and information affect the role of “slack” in the law. Slack is the informal latitude to break the law without sanction. Pockets of slack exist for various reasons, including information imperfections, enforcement resource constraints, deliberate nonenforcement of problematic laws, politics, biases, and luck. Slack is important in allowing flexibility and forbearance in the legal system, but it also risks enabling selective and uneven enforcement. Increasingly available data is now upending slack, causing it to contract and exacerbating the risks of unfair enforcement.

This Article delineates the various contexts in which slack arises and …

The Wandering Officer, Ben Grunwald, John Rappaport

Faculty Scholarship

“Wandering officers” are law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency. Policing experts hold disparate views about the extent and character of the wandering-officer phenomenon. Some insist that wandering officers are everywhere—possibly increasingly so—and that they’re dangerous. Others, however, maintain that critics cherry-pick rare and egregious anecdotes that distort broader realities. In the absence of systematic data, we simply do not know how common wandering officers are or how much of a threat they pose, nor can we know whether and how to address the issue through policy reform.

In this …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Immigration Detainers, Local Discretion, And State Law's Historical Constraints, Kate Evans

Faculty Scholarship

No abstract provided.

Self-Policing: Dissemination And Adoption Of Police Eyewitness Policies In Virginia, Brandon L. Garrett

Faculty Scholarship

Professional policing organizations emphasize the importance of the adoption of sound police policies and procedures, but traditionally doing so has been left to individual agencies. State and local government typically does not closely regulate police, and neither federal constitutional rulings nor state law typically sets out in any detail the practices that police should follow. Thus, law enforcement agencies must themselves draft and disseminate policy. This paper presents the results of studies used to assess the adoption of eyewitness identification policies by law enforcement agencies in Virginia. Policymakers were focused on this problem because Virginia experienced a series of DNA …

The Origins Of The American Military Coup Of 2012, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Strategic Enforcement, Margaret H. Lemos, Alex Stein

Faculty Scholarship

No abstract provided.

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …

Lawyers, Jails, And The Law’S Fake Bargains, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Police-Ization Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

This essay will briefly review the background of the use of the armed forces in a police capacity, discuss the growth of that role in the I980s and 1990s, and forecast an even greater expansion into that role in the near future due to the emerging threat of "catastrophic terrorism." It will contend that this increased reliance on military resources for policing is not in the interest of either the armed forces or the public. Finally, it will make some observations with a view towards minimizing the dangers of police-ization of the military while ensuring the Nation's public safety.

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel Charles

Faculty Scholarship

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

Federal Use Of State Institutions In The Administration Of Criminal Justice, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Electronic Surveillance, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

Parole Revocation And The Right To Counsel, Paul W. Grimm

Faculty Scholarship

No abstract provided.