Legal Theory Commons^™

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

University of 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 …

Mindfulness And The Need To Minimize The Risk Of Harm: A Proposal To Implement And Enforce Standards For Secular Mindfulness Practice, Michael Falick

Mindfulness Studies Theses

While Western mindfulness practice is indeed beneficial for many participants, the research now clearly demonstrates that for some meditators, there are attendant potential risks. These potential risks to practitioners require a level of care from those individuals (and corporations) that disseminate mindfulness practice. Historically, in traditional Buddhist practice, mindfulness was but one of the eight factors on the Noble Eightfold Path. An important component of traditional practice strongly relies on ethics in the delivery of the practice. A formalized standard of care for modern, secular mindfulness practices, and a method to implement and enforce that standard, will greatly enhance safety …

The Function Of The Hukou System In Post-Revolutionary China & Its Autonomous Regions, Joseph Kramer

Master's Theses

Over the course of more than two millennia the Hukou System has shifted in scope and purpose. In dynastic times it served as a mechanism of tax acquisition. In more recent years it has functioned as a method of census and land distribution. Today it holds a duplicitous function serving as both an economic and social control mechanism. The Hukou achieves this through controlling movement through a passport like system of internal registration. In simpler terms, think of the Hukou as an internal passport regulating movement while simultaneously holding all of your biometric data which is surveilled and controlled by …

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 …

Incapacitated Fatherhood: The Impact Of Mass Incarceration On Black Father Identity, Dara Lewis, Philip Young P. Hong

Qualitative Criminology (QC)

"Despite the growing body of literature detailing the disproportionate social consequences of mass incarceration to black men, many of whom are fathers, insufficient attention has been given to the extent of damage on fatherhood and father identity in particular. This article examines the consequences of mass incarceration on father identity and the performance of fatherhood among a group of black men. Drawing from rich qualitative data, the study uses the lived experiences and perceptions of a group of formerly incarcerated black fathers. This research found that the incarceration experience significantly disrupted the performance of fatherhood among this group of men …

Tasseli Mckay, Megan Comfort, Christine Lindquist, & Anupa Bir, Holding On: Family And Fatherhood During Incarceration And Reentry, Danielle L. Haverkate

Qualitative Criminology (QC)

"The impact of incarceration on families has received increased focus over the past 20 years. The bulk of examinations have narrowed in on the impact of parental incarceration on children (see Wakefield & Wildeman, 2013), the impact of incarceration on parenting (see Hairston, 2002), and the impacts of incarceration on the partners of those incarcerated (see Roy & Dyson, 2005; Turney, 2015). All of this suggests that family functioning is disrupted during periods of incarceration. Despite this, a large proportion of the literature on family relationships during and after prison focuses on incarcerated mothers (see Ferraro & Moe, 2003; Enos, …

What’S After Good?: The Burden Of Post-Incarceration Life, Quintin Williams, Cesraéa Rumpf

Qualitative Criminology (QC)

"In the current era of mass incarceration, an increasing number of people face the challenge of transitioning from prison to society. Researchers of post-incarceration life have produced a detailed account of the collateral consequences of incarceration, noting the numerous barriers people must overcome as they try to return to society. In this paper, we show how stigma continues to be a structuring force in the lives of the formerly incarcerated. We develop the concept of the burden of post-incarceration life, meaning the structural constraints formerly incarcerated people face and the constant work they undertake to demonstrate and attempt to …

Letter From The Outgoing Editor, Lynne Vieraitis

Qualitative Criminology (QC)

"Welcome to the first issue of Volume 9 of the Journal of Qualitative Criminal Justice & Criminology, and my last issue as editor. I am happy to hand over the position to Scott Jacques from Georgia State University, who has a solid record as a qualitative researcher. The journal is in excellent hands, and I wish Scott and his editorial team the best as they continue to advance the journal and qualitative research."

Explaining The Body-Worn Camera Perspective Bias, Rémi Boivin, Camille Faubert, Annie Gendron, Bruno Poulin

Qualitative Criminology (QC)

"Body-worn cameras (BWCs) can be used to provide video evidence that is expected to help settle cases quickly. The present study explores the assumption that everyone who watches a recorded intervention will have the same understanding of the images. Focus groups were conducted with different people: citizens from the general population, in-training police candidates and cadets, as well as experienced police officers. The aim was to provide insights into how a potential BWC perspective bias affects attitudes towards use of force incidents. Results suggest that the bias has more effect on those without actual experience of police work. In particular, …

“A Victim Is A Victim:” Lgbt Blindness Among Victim Assistance Workers, Michael C. Lasala, James P. Fedor

Qualitative Criminology (QC)

"LGBT crime victims underutilize victim assistance services because they fear secondary victimization by homophobic and insensitive workers and organizations. However, assessment of the perceptions and competence of those working with these populations is largely absent from the literature. To address this gap, we qualitatively investigated 83 victim assistance workers and administrators regarding their practices with LGBT victims. Overall, respondents believed that a victim’s sexual orientation or gender identity was irrelevant, which was well-meaning but potentially perpetuated a type of LGBT cultural blindness to the needs of these populations, not dissimilar to color blindness among some white service providers toward African …

“Driver’S License, Military Id, And Proof Of Registration And Insurance, Please”: Officer Discretion Surrounding Traffic Stops On An Air Force Installation, Steven L. Holman, Don Hummer

Qualitative Criminology (QC)

"Officer discretion is an oft-debated topic in American culture today. A plethora of research has been conducted on how local, county, and state law enforcement officers use their discretionary authority specific to enforcement of moving violations and the initiation of traffic stops, however to date, no such work has been conducted on a policing entity within the United States military. Through observational ride alongs and unstructured discussion with participants, this study breaks that barrier and assesses how one particular Air Force installation’s law enforcement officers exercise their authority."

“Sometimes I’M Just Wearing The Prosecutor Down”: An Exploratory Analysis Of Criminal Defense Attorneys In Plea Negotiations And Client Counseling, Jacqueline G. Lee, John W. Ropp

Qualitative Criminology (QC)

"As plea bargains have proliferated in the criminal justice system, scholars have been working to better understand their mechanics. There have been a few recent examinations of plea bargaining, but the literature lacks qualitative research that gives the defense sufficient attention. Using a sample of courtroom practitioners in one large, urban county, we examine defense attorney bargaining and client counseling tactics. Results demonstrate that defense attorneys use a variety of strategies for negotiation, including sharing humanizing information about their clients with the prosecutor and utilizing delay tactics. Results also suggest that attorneys counsel their clients about plea offers in varying …