Legal Theory Commons^™

Miriam Boeri, Hurt: Chronicles Of The Drug War Generation, Kathleen E. Padilla

Qualitative Criminology (QC)

In 1971, President Nixon officially declared the War on Drugs. Flash forward to 2020 and the prison population is approximately 2.3 million people, with 1 in 5 of those individuals having been incarcerated for a non-violent drug offense (Wagner & Wagner, 2020). Among those caught up in drug offenses stemming from the policies enacted during the War on Drugs, the majority are baby boomers. Baby boomers are those that are born between the years 1946 and 1964, and whose current population is approximately 73 million, the second largest generation aside from Millennials (Census, 2019). By the start of the 21st …

Forced Interactions With Sheriff Deputies Over Time And Their Influence On Stigma And Self Identities Among Individuals Convicted Of Sex Crimes, Lisa L. Sample, Brooke Cooley, Tusty Ten Bensel, Carin Hyter, Brett Hurley

Qualitative Criminology (QC)

"This paper examined the perceptions of convicted sex offenders and their interactions with law enforcement over time. Specifically, we focused on how formal interactions influenced stigma management and self-identity transformation. For decades, scholars have proposed that identities and behaviors often result from interactions with others. Sex offender registration and notification laws force interactions between registrants and police agents for years, if not a lifetime. Given that desistance from sex offending is dependent on prosocial identity transformation, we analyzed interviews with 63 registrants to uncover how interactions with police promote or inhibit identity transformation over time. Our findings suggested interactions with …

Interpersonal Interaction Between Prisoners And Officers In Prisons: A Qualitative Meta-Synthesis Exploring Prison Officer Wellbeing, Davinia Rizzo, Belinda Davey, Melanie Irons

Qualitative Criminology (QC)

"The wellbeing of prison officers has primarily been understood as a function of contextual variables such as their workplace and the nature of their role. Yet the research suggests the officers’ gender and tenure are the only statistically significant predictors of wellbeing for this population (Butler, Tasca, Zhang, & Carpenter, 2019). These findings suggest that variables at the person level may be more important than contextual variables. As such, we conducted a qualitative, meta-synthesis to explore how interpersonal interactions between prisoners and prison officers may affect the health and wellbeing of prison officers. Following a systematic review of the literature, …

Review Of Philosophical Foundations Of Labour Law, Edited By Hugh Collins, Gillian Lester, And Virginia Mantouvalou, Matthew Dimick

Book Reviews

No abstract provided.

Rights For The “Non-Conforming” Woman: The Intersectionality Of The Fight For Women’S Rights And Lgbtq+ Rights In Argentina, Talia C. Housman

Honors Theses

Argentina has faced many challenges throughout its history of activism as the people have pushed for an equal society. Different movements have sprung up over the years, but they have begun to twist together in recent times due to the need for support during repressive regimes. This brings into question the concept of intersectionality, which spans feminist, queer, and legal theory in its attempt to explain the need for overlap, modeling the natural development of personal identities and groups like family. The feminist movement and the LGBTQ+ movements have woven together in many rallies, especially during El Encuentro Nacional de …

Legal Pluralism And Analytical Jurisprudence: An Inapposite Contrast, Jorge Luis Fabra-Zamora

Journal Articles

The intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal …

Seeing And Responding: How Students Perceive School Personnel To Fail To Respond To Bullying, Ethan M. Higgins, Benjamin W. Fisher, Maury Nation

Qualitative Criminology (QC)

"Although research has shown that students and school personnel believe that adults respond to bullying at different rates, it is unclear why these differences occur. Using open-ended survey responses from 189 students, this study investigates why students perceive that school personnel fail to respond to bullying. Students articulated a variety of reasons for school personnel’s lack of response, including ways in which they could fail to see, notice, or respond to the bullying. In turn, students used their agency to understand and counteract school personnel’s lack of response. Theoretical and policy implications are discussed."

Disparity In Context: Judges’ Perspectives On Disparities In A Sentencing Guideline System, Justin M. Smith

Qualitative Criminology (QC)

"Unwarranted disparity in sentencing continues to be a problem in criminal courts. Sentencing, a final step in the multi-stage process of criminal justice, is seen as such an important component of ensuring consistency that legislative policy has created guidelines to control judicial decision-making. Nonetheless, research shows that disparity under sentencing guidelines persists due to influences external to the law - referred to as substantive rationality. Sentencing research overwhelmingly utilizes quantitative analysis of official court data to produce its conclusions about the influences of disparity. The current study builds upon past research by using qualitative analysis of interviews with 20 judges …

Social Exchange And The Formation Of Prison Visitation Communities, Adam Trahan, Douglas Evans

Qualitative Criminology (QC)

"Family members and significant others of incarcerated individuals suffer when their loved ones are incarcerated. The loss of a parent, sibling, child, spouse, or partner to incarceration can be painful. If they wish to stay physically connected to an incarcerated individual, visitation is their only recourse. Visiting a prison can be costly in terms of the amount of time it takes to travel to the facility, the total expenses incurred during travel, and the socio-emotional effects of limited contact. On top of these costs, visitation can be an intricate process to navigate due to the multitude of facility rules and …

Perceptions Of Rehabilitative Change Among Incarcerated Persons Enrolled In A Prison-Equine Program (Pep), Joyce A. Arditti, Amy A. Morgan, Sara Spiers, Virginia Buechner-Maxwell, Vicky Shivy

Qualitative Criminology (QC)

"Guided by a grounded theory methodology, the authors propose a theory of rehabilitation for incarcerated persons within a prison equine program (PEP). Interviews with ten incarcerated men yielded a grounded theory of rehabilitative change centered around the importance of relationships with program staff and horses, and the uniqueness of the barn-equine environment in promoting safe attachments and positive views of self. Special emphasis is placed on the development of secure reparative attachments between men and their horses grounded in acceptance and mutual empathy, as well as the development of redemptive identities whereby participants viewed themselves as having purpose and value …

Fault Lines: An Empirical Legal Study Of California Secession, Bill Tomlinson, Andrew W. Torrance

Seattle Journal of Technology, Environmental, & Innovation Law

Over the last decade, multiple initiatives have proposed that California should secede from the United States. This article examines the legal aspects of California secession and integrates that analysis with findings from an empirical study of public perceptions of such secession. There is no provision in the United States Constitution allowing states, or other political or geographical units, to secede unilaterally. The Civil War was fought to uphold this principle, and the United States Supreme Court confirmed it in its 1869 Texas v. White decision. Nevertheless, numerous instances of secession, both legal and extralegal, have occurred across human history, and …

Policing In A Democratic Constitution, Michael Wasco

Indiana Journal of Constitutional Design

Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.

Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and …

David Versus Godzilla: Bigger Stones, Jerry Ellig, Richard Williams

Dickinson Law Review (2017-Present)

For four decades, U.S. Presidents have issued executive orders requiring agencies to conduct comprehensive regulatory impact analysis (RIA) for significant regulations to ensure that regulatory decisions solve social problems in a cost-beneficial manner. Yet experience demonstrates that agency RIAs often fail to live up to the standards enunciated in executive orders and Office of Management and Budget (OMB) guidance. The Office of Information and Regulatory Affairs (OIRA) oversees agency compliance with the executive orders, but OIRA is about half the size it was when it was established in 1980. Regulatory agency staff outnumber OIRA staff by a ratio of 3600 …

Tech Policy And Legal Theory Syllabus, Yafit Lev-Aretz, Nizan Packin

Open Educational Resources

Technology has changed dramatically over the last couple of decades. Currently, virtually all business industries are powered by large quantities of data. The potential as well as actual uses of business data, which oftentimes includes personal user data, raise complex issues of informed consent and data protection. This course will explore many of these complex issues, with the goal of guiding students into thinking about tech policy from a broad ethical perspective as well as preparing students to responsibly conduct themselves in different areas and industries in a world growingly dominated by technology.

Speaking Volumes: The Failure Of American Courts To Address The Underlying Themes Of Silence And Patriarchy Within The Civil Order Of Protection Process In Davenport, Iowa, Catherine Priebe

Sociology: Student Scholarship & Creative Works

Domestic abuse is a pervasive issue within the United States. Approximately three women will be murdered by an intimate partner every day and around half of all women will experience psychological abuse by an intimate partner in their lifetime. As such, it is important to have legal avenues that survivors can pursue in order to ensure safety for themselves and their children. There are many obstacles to obtaining a civil order of protection despite it being the most common legal option survivors choose to pursue. Survivors must take on the burden of proof and hire their own attorney if they …

Criminal Injustice: Considering White Privilege And Colonization In The Examination Of Racial Bias In The United States Criminal Justice System, Jane E. Sanders

LSU New Orleans Theses and Dissertations

Laws and institutions in the United States have consistently marginalized people of color throughout the country's history. This research examines the United States' criminal justice system while considering how the country’s past of oppression has resulted in a racially biased system. Through analysis of policies, literature, and quantitative data, the primary goal of this research is not only to exhibit that racial discrepancies exist within the criminal justice system, but also to question how they persist in order to determine a solution. By utilizing both qualitative data collected through existing social theory as well as quantitative data showing varying perceptions …

Gender And Judicial Decision-Making, Alexandra Just

Undergraduate Theses

This study employs a unique two-tiered approach, involving both quantitative and qualitative methodology to analyze the influences – specifically, a judge’s gender – on the judicial decision-making process. First, a quantitative bivariate regression analysis was conducted to determine whether a Federal District Court judge’s gender had a statistically significant influence on the ideological direction of case outcomes (which is either liberal, meaning the decision was in favor of the petitioner, or conservative, meaning the decision was against the petitioner). Data was analyzed using the statistical program SPSS and was pulled from the 2016 Carp-Manning database, which contains over 110,000 federal …

Rules, Standards, And Such, Kevin M. Clermont

Buffalo Law Review

This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …

Much Obliged? Moral Psychology And The Social Obligation Of Property: An Essay In Honor Of Gregory Alexander, Nestor M. Davidson

Cornell Journal of Law and Public Policy

Few scholars have argued as eloquently as Gregory Alexander for the normative force of social obligation in American property law and for a broader understanding of property as inherently relational. The idea that mutual regard for the ability of each person to have meaningful life choices means that ownership entails duties to others has always seemed to me-perhaps not surprisingly given my own moral intuitive priors-deeply compelling. But it is clear that other moral intuitions lead people to value just as deeply and just as intuitively property's ability to establish individual sanctuary within strong, clear boundaries. I don't have the …

It's Not Personal: Social Obligations In The Office Of Ownership, Larissa Katz

Cornell Journal of Law and Public Policy

In November 2016, the City of Vancouver passed its "Vacancy Tax By-law." The law requires homeowners to submit a property status declaration each year to the City, revealing the uses they are making of their property. An owner whose property is not rented or in use for at least 6 months a year is subject to a vacancy tax. The stated purpose of the law is to address the affordable housing crisis in Vancouver, a city where the official rental vacancy rate is less than 1%. By penalizing absentee owners, the law is intended to increase supply and to deter …

Liberalism And The Commons, Hanoch Dagan

Cornell Journal of Law and Public Policy

It is a real privilege for me to participate in the celebration of Greg Alexander's enormous contribution to the scholarship and jurisprudence on property, which has enhanced our understanding of property in numerous ways. Alexander utilized almost every tool in a legal theorist's kit-notably: history, comparative law, and philosophical investigation-to study property and developed an innovative and nuanced theory of property. Property, for Alexander, has a core role in fostering human flourishing. A proper conception of property, he claims, must acknowledge that obligations and not just rights, and communities and not only individuals, take center stage.

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah

Dickinson Law Review (2017-Present)

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the …

Safe Consumption Sites And The Perverse Dynamics Of Federalism In The Aftermath Of The War On Drugs, Deborah Ahrens

Dickinson Law Review (2017-Present)

In this Article, I explore the complicated regulatory and federalism issues posed by creating safe consumption sites for drug users—an effort which would regulate drugs through use of a public health paradigm. This Article details the difficulties that localities pursuing such sites and other non-criminal-law responses have faced as a result of both federal and state interference. It contrasts those difficulties with the carte blanche local and state officials typically receive from federal regulators when creatively adopting new punitive policies to combat drugs. In so doing, this Article identifies systemic asymmetries of federalism that threaten drug policy reform. While traditional …

“But I’M Standing Inside Right Now And I Need Help”: Security Projects And The Perceptions Of Campus Security, Andrea Corradi, Carrie B. Sanders, James Popham

Qualitative Criminology (QC)

"Acts of violence at institutions of higher education have been heavily publicized, leading security on post-secondary campuses to become a hotbed issue in the media and in the daily lives of those who attend them. With extensive media coverage of events such as the attack on Jeanne Clery, and the mass shootings at Northern Illinois University, Dawson College, and Virginia Tech, many post-secondary schools are working to enhance their security practices. The present study uses Valverde’s (2001; 2008; 2009; 2010; 2011; 2014) security projects framework to examine the lived experiences of security measures on a Canadian urban-integrated campus. Through semi-structured …

Public Opinion Of The Police In 1930s America: A Qualitative Historiographical Study, Willard M. Oliver

Qualitative Criminology (QC)

"Public opinion polls largely developed post-WWII and questions about the police did not appear until the late 1960s. Since then, over 100+ studies have assessed the modern-day public opinion of the police, but none have looked to public opinion from an earlier time period. This study uses a qualitative historiographical approach for assessing public opinion of the police in the 1930s by drawing on the primary source of a letter exchange between two of that eras greatest pulp writers: Robert E. Howard and H.P. Lovecraft. Findings suggest similarities between the 1930s and present day public opinion of the police."

Jennifer E. Cobbina, Hands Up, Don't Shoot, Joshua R. Ruffin

Qualitative Criminology (QC)

"Issues surrounding police use of excessive force continue to be a longstanding debate in the field of Criminal Justice. In the timely boots-on-the-ground work, Hands Up, Don't Shoot, Jennifer Cobbina amplifies the voices of Ferguson and Baltimore protestors by conducting indepth interviews with residents as it relates to their everyday experience with the police. In Hands Up, Don’t Shoot, Cobbina takes an “and” instead of an “or” approach in understanding the experiences often faced by residents of different intersecting identities in these communities. Further, Cobbina provides readers the opportunity to learn of the racialized experiences of these groups …

Out-Of-School Suspensions: Counter-Narratives From The Student Perspective, Karen Mcelrath, Lori Guevara, Zahra Shekarkhar, Joe M. Brown

Qualitative Criminology (QC)

"Out-of-school suspension (OSS) is a major disciplinary tool that has impacted large numbers of students in the United States. Most research into OSS has drawn exclusively on data collected from school records and other “official” sources, and this body of work has contributed to our understanding of suspension decisions by school officials. Considerably less is known about how students experience out-of-school suspensions. This line of inquiry is important because it captures the student voice and reveals a series of counter-narratives that offer alternative interpretations of students’ behaviors that lead to OSS. The aims of this study were twofold: 1) to …

“Everybody Loses:” Understanding Police Roles And Perceptions Of Domestic Violence Calls, Anjali Fulambarker

Qualitative Criminology (QC)

"To better understand police response to domestic violence, it is useful to consider the perspectives of officers themselves. Through exploratory, in-depth interviews and applying the lens of role theory, this study focuses on police officers’ perceptions of their role in responding to domestic violence, their perceptions of the effectiveness of their response, and challenges they face. Findings suggest that, for these participants, there is an overlap in the different roles they inhabit, as well as limitations and barriers to their response. These limitations and obstacles are a signal that officers may be experiencing role overload, which leads to their frustration …