Law Commons^™

Defending Constitutional Rights In Imbalanced Courtrooms, Esther Nir, Siyu Liu

Journal of Criminal Law and Criminology

Safeguarding Fourth Amendment protections is critical to preserving individual privacy rights and fostering positive perceptions of police legitimacy within communities. Maintaining an effective accountability structure for police stops, searches, and seizures is a necessary step toward achieving these objectives. In this article, we use qualitative interviews and survey data with defense attorneys to explore—from a court community perspective— their use of discretion to uphold the Exclusionary Rule through bringing suppression motions. Data demonstrate that power dynamics within the court community lead defense attorneys to conclude that litigating rights violations is often a futile effort that interferes with favorable case outcomes …

The Modern Common Law Of Crime, Robert Leider

Journal of Criminal Law and Criminology

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily conventional. That is, …

Pregnant And Detained: Constitutional Rights And Remedies For Pregnant Detainees, Natalie Avery Barnaby

Journal of Criminal Law and Criminology

Over the last thirty years, the United States has increasingly expanded what is already the largest immigration detention system in the world. On a daily basis, the U.S. government holds more than 50,000 people in detention as they wait for their immigration hearings or their removal back to their home country. During the past two decades, presidential administrations have enacted regulations to deter immigrants from entering the United States and narrow their ability to stay in the country, leading to an overall increase in detentions.

There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in immigration …

Regional International Juvenile Incarceration Models As A Blueprint For Rehabilitative Reform Of Juvenile Criminal Justice Systems In The United States, Robert Laird

Journal of Criminal Law and Criminology

Adolescence marks a unique and transformative time in a person’s physical, emotional, and intellectual development and requires special considerations in the realm of criminal justice. This Comment explores how rehabilitative models of criminal justice are better suited than punitive models to recognize and accommodate the intricacies and special factors inherent in juvenile delinquency and uses examples from regional international bodies to illustrate how the United States can adopt measures that align with modern-day neurology and psychiatry. First, this Comment explores the unique characteristics of juvenile offenders as adolescent, semi-autonomous individuals who are more likely to be incompetent to stand trial …

Capital Felony Merger, William M. Berry Iii

Journal of Criminal Law and Criminology

Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices. This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” …

"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance

Journal of Criminal Law and Criminology

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline …

Minding The Gap In Domestic Violence Legislation: Should States Adopt Course Of Conduct Laws?, Teresa Manring

Journal of Criminal Law and Criminology

In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several …

Rethinking Reverse Location Search Warrants, Mohit Rathi

Journal of Criminal Law and Criminology

The conflict between personal liberty and collective security has challenged Americans throughout the ages. The reverse location search warrant, which provides police officers with the ability to access location information on every smartphone that passes within a certain radius around a crime scene, is the newest chapter in this conflict. This technology is relatively new, but it is slowly being adopted by technologically savvy police departments across the country. While the reverse location search warrant could help officers catch and prevent crimes, the technology comes at the cost of providing police departments with unprecedented access to the location information of …

Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder

Journal of Criminal Law and Criminology

Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such …

How South Korea Can Improve Its Carbon Market: The Importance Of Economic Incentives And International Cooperation In The Fight Against Climate Change, Seo Jung Park

Emory International Law Review

It is well-recognized that global warming is indeed a problem. Hence, in order to address the problem, many countries in the world have implemented market-based approaches, one such approach being the cap-and-trade program. This Comment discusses cap-and-trade programs from several different countries – the United States, the European Union, China, India, and South Korea. In particular, this Comment analyzes how each country implements their cap-and-trade program. Furthermore, this Comment focuses on three major international agreements that have been created in recognition of the importance of international collaboration to fight against global warming. These agreements are the United Nations Framework Convention …

Should We Be Merciful To The Merciless—Mercy In Sentencing, Doron Menashe

Emory International Law Review

The aim of this Article is to present a normative argument for mercy as a legitimate consideration in judicial proceedings, defining it as a distinct and independent element not encompassed by normal concerns of justice, retribution and individuation of sentencing. The Article addresses two meanings of mercy in the judicial context, both of which have—in the view of the author—a rightful part in the process of judgment and sentencing. These are “mercy” in the weak sense, i.e., a deliberative state of mind which accompanies the judicial proceedings (“Lesser Mercy”), and “mercy” in the strong sense, i.e., the judicial prerogative of …

Why The United Kingdom Should Look To Switzerland's Immigration System To Protect The English Premier League After Brexit, Fraser Goodlad

Emory International Law Review

Global talent is crucial to the economic behemoth that is the English Premier League (EPL). Having left the European Union (EU), the United Kingdom (UK) and the EPL are at a crossroads. The UK could implement immigration laws that represent “openness,” or a more insular path to protect English soccer players. Switzerland provides an example of a state outside the EU that maintains an immigration system similar to that of the UK prior to Brexit. Russia provides an example of a state that has wholly different and far more distant relationship with the EU. To safeguard the EPL’s position as …

The General Data Protection Regulation And Open Source Software Communities, Amye Scavarda Perrin

Cybaris®

No abstract provided.

Teaching Lawyers To Think Like Leaders: The Next Big Shift In Legal Education, April Mara Barton

Law Faculty Publications

The old saying is that students go to law school to learn to think like lawyers. While thinking like a lawyer is indeed critical to becoming a good lawyer, we must also teach our law students to think like leaders. Countless leaders in politics, government, business, and the non-profit sector are lawyers. While these lawyers are smart, precise, thorough, and honorable professionals, our public and private sectors would be further served by lawyers who are also taught to understand what leadership is (and is not) and who have honed their own leadership awareness and skills.

Economic Regulation And Rural America, Ann M. Eisenberg

Faculty Publications

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization, and …

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

South Carolina Practice Materials: A Selective Annotated Bibliography, Eve Ross

Faculty Publications

No abstract provided.

The Bounds Of Energy Law, Shelley Welton

Faculty Publications

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Market-Anticipatory Approaches To Rural Property Vacancy, Ann M. Eisenberg

Faculty Publications

No abstract provided.

The End Of Comparative Qualified Immunity, Colin Miller

Faculty Publications

Critics have called qualified immunity an “unqualified disgrace,” an “abomination,” and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.” One particularly troubling aspect of qualified immunity is what I’ll call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his behavior wasn’t that much worse than conduct by a prior official that was deemed constitutional. In November 2020, the Supreme Court seemingly created a narrow exception to comparative qualified immunity in cases involving “particularly egregious facts.” In February 2021, however, the Supreme Court signaled that this was no …

Social Services And Mutual Aid In Times Of Covid-19 And Beyond: A Brief Critique, Dana Neacsu

Law Faculty Publications

May 19, 2021, marked a crucial point in the United States’ fight against the COVID-19 pandemic: sixty percent of U.S. adults had been vaccinated. Since then, Americans have witnessed the beginning of the end of the COVID-19 pandemic, but its long-term effects are here to stay. Ironically, some are unexpectedly welcome. Among the lasting positive changes is an augmented sense of individual involvement in community well-being. This multifaceted phenomenon has given rise to #BLM allyship and heightened interest in mutual aid networks. In the legal realm, it has manifested with law students, their educators, lawyers, and the American Bar Association …

Narrowing Access To The Legal Profession: The Pandemic's Impact On First-Generation Women, Victor D. Quintanilla, Erin Freiburger

Articles by Maurer Faculty

No abstract provided.

Forensic Evidence In Arizona: Reforms For Victims And Defendants, Valena Beety

Articles by Maurer Faculty

Arizona is nationally recognized as a leader in forensic science. Our state court judges serve on the Legal Resource Committee for the National Institute of Science and Technology (NIST) and provide guidance to NIST’s Organization of Scientific Area Committees for Forensic Science. Our Phoenix lab analysts and lab directors have national reputations. And Arizona State University’s Sandra Day O’Connor College of Law has been home to many leading academics in the field of forensics and the law, among them Michael Saks, David Kaye, and Jay Koehler. We have a robust forensic science community in Arizona and in Phoenix in particular. …

Still Strangers In The Land: Achievement Barriers, Burdens, And Bridges Facing African American Students Within Predominantly White Law Schools, Cristal E. Jones

Minnesota Journal of Law & Inequality

No abstract provided.

Fly In The Face Of Bias: Algorithmic Bias In Law Enforcement's Facial Recognition Technology And The Need For An Adaptive Legal Framework, Peter N.K. Schuetz

Minnesota Journal of Law & Inequality

No abstract provided.

2021 Cardozo Life (Winter), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Student Reflections: How has Learning at Cardozo Changed During the Pandemic?, page 2

Pandemic Frontlines: Student from Three Clinics Protect Incarcerated Clients, page 4

Cardozo Faculty: Selected Media, page 8

Billie Holiday’s Legacy Walks the Halls of 55 Fifth, page 10

Filmmakers Legal Clinic Helps Underrepresented Voices Be Heard, page 14

Confronting Structural Violence —Law Teaching Guides: A Q&A with Professor Jocelyn Getgen Kestenbaum, page 20

Class Notes, page 20

In Memoriam, page 26

Climate Lawyers As Movement Lawyers (And Vice Versa), Carmen G. Gonzalez

Faculty Publications & Other Works

In April 2020, the American Society of International Law (ASIL) launched an initiative to foster conversations within and beyond ASIL on the connections between climate change and virtually all other areas of international law. This essay for the ASIL Proceedings is based on a presentation delivered at the April 2021 ASIL Annual Meeting.

The essay examines the link between climate change and racial subordination from the dawn of the fossil fuel-based world economy to the present and the complicity of international law in these converging injustices. It discusses the counterhegemonic uses of international law by environmental justice movements in the …

Insulin Federalism, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.

The Promise Of International Law: A Third World View, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

Race In America 2021: A Time To Embrace Beauharnais V. Illinois?, Steven A. Ramirez

Faculty Publications & Other Works

Hate crimes and racially motivated violence spiked in the United States over the past few years. Our foreign adversaries seek to inflame racial divisions in our nation and turn American against American. This now forms a major threat to our national security and domestic tranquility. Indeed, in light of the attempted insurrection of January 6, 2021, the costs of our festering racial hierarchy now threaten our constitutional republic. The soaring costs of the American racial hierarchy now demands aggressive legal response. This Essay demonstrates that the process of racial formation undergirding the hierarchy relies upon group libel to propagate racial …