Law Commons^™

A Guiding Hand Or A Slap On The Wrist: Can Drug Courts Be The Solution To Maternal Opioid Use?, Cara O'Connor

Journal of Criminal Law and Criminology

As the opioid epidemic has expanded its reach, the number of pregnant women addicted to opioids has increased exponentially in recent years. The increase in the number of opioid-addicted pregnant women has resulted in a drastic expansion in the number of newborns who experience Neonatal Abstinence Syndrome (NAS). Newborns affected with NAS experience painful withdrawal and cost more to care for due to their increased health needs. In an effort to address the growing number of pregnant women using opioids and babies born with NAS, some states have turned to the criminal justice system. Three states–Tennessee, South Carolina, and Alabama–have …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen Henderson

Journal of Criminal Law and Criminology

Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain ‘in the loop’ of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves.

In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A "Violent" Crime, Michael O'Hear

Journal of Criminal Law and Criminology

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification …

Managing Digital Discovery In Criminal Cases, Jenia I. Turner

Journal of Criminal Law and Criminology

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, …

Perception Versus Punishment In Cybercrime, James T. Graves, Alessandro Acquisti, Ross Anderson

Journal of Criminal Law and Criminology

No abstract provided.

Ziglar V. Abassi And Its Effect On The Constitutional Rights Of Federal Prisoners, Julio Pereyra

Journal of Criminal Law and Criminology

In June 2017, the Supreme Court decided Ziglar v. Abbasi and held that prisoners unlawfully detained post-9/11 did not have a Bivens claim against policy-level federal executive branch officials and likely had no Bivens claim against the wardens at the facility where they were detained. In doing so, the Court drastically altered the analysis for deciding when a Bivens claim is new and for determining when a new Bivens claim should be either allowed by a court or precluded under a “special factors” analysis. This change in the Bivens framework severely restricts the availability of factually novel Bivens claims, even …

Torture And Respect, Jacob Bronsther

Journal of Criminal Law and Criminology

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment—torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain …

Mens Rea Reform And Its Discontents, Benjamin Levin

Journal of Criminal Law and Criminology

This Article examines the contentious debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of conduct that is quite common. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view …

Reading The Prisoner's Letter: Attorney-Client Confidentiality In Inmate Correspondence, Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus, Katherine Koehler

Journal of Criminal Law and Criminology

No one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner, when challenging a conviction as wrongful or prison conditions as unlawful. No one has a greater need to be able to engage in the uninhibited discussion of highly personal matters, tragic events, and official misconduct. A prisoner’s constitutional rights to freedom of speech, access to the courts, due process, and assistance of counsel are placed in unique jeopardy when a correctional system insists on prying into the substantive contents of legal mail.

In this Article, we explain the vital …

Death With Dignity For The Seemingly Undignified: Denial Of Aid In Dying In Prison, Kathleen Messinger

Journal of Criminal Law and Criminology

The medical community has fundamentally changed how we think about life and death. Humans in privileged parts of the world are living longer and have access to life-saving treatment. The focus on quantity of life then has shifted to emphasizing quality of life and questioning whether longevity should at the expense of comfort or satisfaction. The conversation surrounding quality of life, and by extension end-of-life care, has included whether a competent adult has a right, or should have a right to end their own life on their own terms. The history of aid in dying is wrought with political ideology, …

The Federal Bank Robbery Act: Why The Current Split Involving The Use Of Force Requirement For Attempted Bank Robbery Is Really An Exception, Paul Piaskoski

Journal of Criminal Law and Criminology

The Federal Bank Robbery Act had been on the books for seventy years by the time the federal appellate courts began to openly quarrel about the necessary elements of attempted bank robbery under the first paragraph of the Act, 18 U.S.C. § 2113(a). Specifically, the circuits disagree as to whether proof of actual force is required to sustain a conviction of attempted bank robbery, or if attempted force is sufficient for a conviction. Legal scholars have repeatedly framed this split in authority as a consequence of competing methods of statutory interpretation. In this Comment, however, I argue that it is …

Mass Incarceration Paradigm Shift?: Convergence In An Age Of Divergence, Mugambi Jouet

Journal of Criminal Law and Criminology

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had …

Measuring Change: From Rates Of Recidivism To Markers Of Desistance, Cecelia M. Klingele

Journal of Criminal Law and Criminology

Reducing the incidence of crime is a primary task of the criminal justice system and one for which it rightly should be held accountable. The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment. This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of criminal justice interventions or of those who participate in them. This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid, stand-alone metric …

Jason’S Long Night At Camp Blood: Surveying The Independent Copyrightability Of Jason Voorhees In The Wake Of Horror Inc. V. Miller, Tim Kelly

Cybaris®

No abstract provided.

What Protections Are Available To Graffiti Artists?, Molly Lamovec

Cybaris®

No abstract provided.

Taking The Threat To Democracy Seriously, Bruce S. Ledewitz

Law Faculty Publications

No abstract provided.

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

Marketing Legal Assistance, Elizabeth Chambliss

Faculty Publications

Much of the American conversation about access to justice focuses on regulatory barriers to new forms of service delivery and treats regulatory resistance as the primary problem to be solved. Meanwhile, obstacles to consumer awareness and engagement have received less attention. This essay reverses the order of analysis and considers strategies for expanding access first from a marketing perspective. What models of legal assistance have been most successful in building consumer awareness and trust? To what extent can successful marketing help to sidestep or overcome regulatory resistance? And what are the implications for reformers interested in expanding access to justice?

Evidence-Based Lawyer Regulation, Elizabeth Chambliss

Faculty Publications

The legal profession is losing its authority over the regulation of legal services. Recent changes in antitrust law have put state bar associations under a spotlight. Competition from technology companies and concerns about access to justice have increased political pressure for market liberalization. Independent research is challenging the unique value of lawyers’ services, even in formal legal proceedings, and this research is increasingly well-organized and well-funded at the national level. The organized bar is asleep at the wheel and ill-prepared to respond.

This Article argues that the United States is moving toward evidence-based lawyer regulation, and suggests strategies for equipping …

The School Civil Rights Vacuum, Emily Suski

Faculty Publications

Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the limitations of Title IX as a tool for protecting college students. What has gone far less recognized is that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title IX claims, even in some of the most egregious cases. …

Dismantling The Master's House: Toward A Justice-Based Theory Of Community Economic Development, Etienne C. Toussaint

Faculty Publications

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community — the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by …

Social Media, Manipulation, And Violence, Allyson Haynes Stuart

South Carolina Journal of International Law and Business

No abstract provided.

Bias Response On Campus, Joseph W. Yockey

The Journal of Law and Education

No abstract provided.

Rewarding Innovation Or Facilitating Conflict - Exploring The Legal Implications Of Teacherpreneurship, Ryan Clements

The Journal of Law and Education

No abstract provided.

Flags On The Play: We're On The Same Team Counterpoint, Rachel B. Hitch

The Journal of Law and Education

No abstract provided.

An Insurance Broker's Duty: Adopting California's Approach, Jason Sumbaly

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Board Of Editors - Vol. 43, No. 1 2019

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Maine Law Magazine - Issue No. 95, University Of Maine School Of Law

Maine Law Magazine

• Arctic collaboration
  Building connections benefits Maine Law students
• A strong future
  Report explores strengthening Maine Law
• For the public good
  The Law School plays a crucial role in shaping leaders
• Passing the torch
  Celebrating Jim Burke’s legacy
• The value of experience
  Adjunct professors contribute hands-on wisdom
• Alumni at work
  Graduates make their marks as prosecutors

How Extraterritorial Application Of The New Jersey Consumer Fraud Act And Opioid Litigation Will Fuel The Addiction To Consumer Fraud Claims In New Jersey, Salvatore P. D’Alia

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Toward Restoring Rule-Of-Law Norms, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.