Law Commons^™

Piercing The Prison Uniform Of Invisibility For Black Female Inmates, Michelle S. Jacobs

Michelle S Jacobs

In Inner Lives: Voices of African American Women In Prison, Professor Paula Johnson has written about the most invisible of incarcerated women — incarcerated African American women. The number of women incarcerated in the United States increased by seventy-five percent between 1986 and 1991. Of these women, a disproportionate number are black women. The percentages vary by region and by the nature of institution (county jail, state prison or federal facility), but the bottom line remains the same. In every instance, black women are incarcerated at rates disproportionate to their percentage in the general population. In Inner Lives, Professor Johnson …

Property Outlaws, Eduardo Peñalver, Sonia Katyal

Eduardo M. Peñalver

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

The Jury As Constitutional Identity, Andrew G. Ferguson

Andrew G Ferguson

This article seeks to re-conceptualize jury service in America. It suggests a new theory that looks at jury service not as a discrete task, but an on-going constitutional identity. Building off a historical tradition that dates from the Founding, but can be traced through the Suffrage Movement and the Civil Rights Era, this theory focuses on reclaiming the lost constitutional connection of jury service.

Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more …

Peacemaking & Provocation: A Response To Professor Tracey Jean Boisseau, Dan Subotnik

Dan Subotnik

No abstract provided.

Limited Leverage: Federal Remedies And Policing Reform, Rachel A. Harmon

Rachel A. Harmon

With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police misconduct, and most other remedies for misconduct, promote change by making misconduct costly for police departments and municipalities. Improving federal remedies would encourage some additional departments to seek the positive expected return on reform measures likely to reduce misconduct. But existing federal remedies all focus on either increasing the cost of misconduct or reducing its benefits. The problem is that even if existing federal remedies are altered to maximize deterrence, they cannot be employed to impose a …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Robert L Tsai

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.