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Full-Text Articles in Law
Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle
Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle
Faculty Scholarship
This paper tackles a difficult legal and policy challenge—reducing the impact of criminal justice records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …
“Cancel Culture” And Criminal Justice, Steven Arrigg Koh
“Cancel Culture” And Criminal Justice, Steven Arrigg Koh
Faculty Scholarship
This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame …
Race And Class: A Randomized Experiment With Prosecutors, Christopher Robertson, Shima Baradaran Baughman, Megan Wright
Race And Class: A Randomized Experiment With Prosecutors, Christopher Robertson, Shima Baradaran Baughman, Megan Wright
Faculty Scholarship
Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases. Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity. Disparities may also be driven by socio-economic class differences, which are highly correlated with race.
This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions. Case-vignettes are manipulated between-subjects in five conditions to test effects of defendants’ race and class status. …
Martin Luther King Jr. And Pretext Stops (And Arrests): Reflections On How Far We Have Not Come Fifty Years Later, Tracey Maclin, Maria Savarese
Martin Luther King Jr. And Pretext Stops (And Arrests): Reflections On How Far We Have Not Come Fifty Years Later, Tracey Maclin, Maria Savarese
Faculty Scholarship
By January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, …
Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose
Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose
Faculty Scholarship
The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …
Resurrecting Miranda's Right To Counsel, David Rossman
Resurrecting Miranda's Right To Counsel, David Rossman
Faculty Scholarship
The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:
1. Police would give the same Miranda warnings that they …
Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman
Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman
Faculty Scholarship
Racial minorities are disproportionately imprisoned in the United States. This disparity is unlikely to be due solely to differences in criminal behavior. Behavioral science research has documented that prosecutors harbor unconscious racial biases. These unconscious biases play a role whenever prosecutors exercise their broad discretion, such as in choosing what crimes to charge and when negotiating plea bargains. To reduce this risk of unconscious racial bias, we propose a policy change: Prosecutors should be blinded to the race of criminal defendants wherever feasible. This could be accomplished by removing information identifying or suggesting the defendant’s race from police dossiers shared …
Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher
Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher
Faculty Scholarship
This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?
Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher
Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher
Faculty Scholarship
George Jones's ordeal was the product of, and in turn sheds light upon, police practices of investigating crimes and writing reports. Written police reports of criminal incidents and arrests give details such as the time, place, and nature of criminal conduct; the names and addresses of victims and witnesses; physical characteristics of the perpetrator(s) or arrestee(s); weapons used; property taken, recovered, or seized from the arrestee; and injuries to persons and property. Through their reports, the police "have fundamental control over the construction of [the] 'facts' for a case, and all other actors (the prosecutor, the judge, the defense lawyer) …
The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle
The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle
Faculty Scholarship
The national debate regarding federal habeas corpus for state prisoners is fueled in the main by ideology. To some, the authority of the federal courts to entertain constitutional challenges to state criminal convictions is the embodiment of all that was right about the Warren Court and the vision that Court offered of a meaningful system of American liberty, underwritten by independent federal tribunals willing and able to check the coercive power of government. By this account, the Bill of Rights is the protean source of safeguards for individual freedom - commanding generous, imaginative, and insightful elaboration by federal courts at …