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Criminalization of Immigration
No full textThis article presents a critical analysis of social scientific research from the past fifteen years on the criminalization of immigration in the United States. Our review reveals three central themes. First, although immigration law is considered federal civil law, immigration enforcement has become substantially intertwined with criminal law enforcement in ways that have broad-ranging and radiating effects on immigrant communities of color. Second, race plays an important bidirectional role in the increasing criminalization of immigration. Specifically, criminalizing immigration results in the racialization of certain immigrant groups as dangerous outsiders, and such racialization has the effect of sustaining and promoting the policies and practices that target or have a disproportionate impact on certain immigrant groups. Third, given the increased externalization of US immigration enforcement programs, the effects of the criminalization of immigration are not limited to the United States. Each of these dynamics operates across multiple sites and in various components of the immigration enforcement system to disproportionately affect immigrants racialized as non-White in the United States. We discuss the important gaps in research and policy implications that follow from our review
Defending Due Process : Why Fairness Matters in a Polarized World
No full textWe all feel unfairness deeply when treated in rash ways. We expect, and the law requires, government officials to take fairness seriously, giving us notice and an opportunity to be heard before taking our rights away. That is why the U.S. Constitution commands, twice, that no one shall be deprived of life, liberty, or property without due process of law. Yet, in overheated debates, people argue that others do not deserve any presumption of innocence. In courtrooms and colleges, police stations and jails, restaurants and libraries, print and online, the democratic value of due process is up for grabs.
Why is due process under so much pressure? Brandon Garrett exposes widening fault lines. One division lies within our own attitudes, and he explores why we are tempted to put desired outcomes before fair process. Another lies in government, as judges adopt toothless due process rules. People are trapped in debt for unpaid traffic fines; sheriffs seize and forfeit belongings; algorithms suspend teachers\u27 employment; officials use flawed data to cancel healthcare; and magistrates order arrestees to be jailed because they cannot pay cash bail. Meanwhile, the rise of AI threatens what remains of due process with black-box technology.
To fight against such unfairness, lawyers try to challenge unjust systems, researchers demonstrate why such processes are so counterproductive, and lawmakers try to enact new protections. Common ground matters now more than ever to mend political polarization, cool simmering distrust of government, prevent injudicious errors, and safeguard constitutional rights. A revival of due process is long overdue.https://scholarship.law.duke.edu/faculty_books/1037/thumbnail.jp
The Solicitor General, Consistency, and Credibility
Full text linkThis Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility.
To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court’s 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government’s litigating position have become more common in recent decades—but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive.
These insights are particularly important today, given the Justices’ willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies’ ability to update or modify policies. The Court’s decision in Loper Bright Enterprises v. Raimondo, overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single “best” answers—and, once ascertained, the meaning of the law is fixed. As we show, the Justices’ reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court’s skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated—by virtue of democratic accountability and on-the-ground experience—to consider the tradeoffs between stability and change
The Invention of Authenticity
No full textChristopher Sprigman, Murray and Kathleen Bring Professor of Law and Co-Director of the Engelberg Center on Innovation Law and Policy at NYU Law will deliver the annual David L. Lange Lecture in Intellectual Property Law. The title of the lecture is The Invention of Authenticity. Professor Sprigman will investigate the role that arguments about authenticity play in our culture, and the role of law in determining the predicates of authenticity for a wide array of cultural products.
Sponsored by the Office of the Dean
Punishment, Penal Reform, and Alternatives to Incarceration in Durham, North Carolina, 1869-Present
Full text linkIn the years following the Civil War, communities throughout the United States reckoned with divergent ideas about crime and punishment. Southern states in particular faced questions related to race and the legacy of slavery as they defined new crimes, designed penal facilities, and filled local jails. During this period, North Carolina adopted a new state constitution that manifested the transition from corporal punishment to incarceration that was occurring throughout the country. Like many states, North Carolina looked to New York and Pennsylvania for lessons to be gleaned from those states’ experiences with penitentiaries—new facilities that promised to rehabilitate incarcerated people and deter crime.
Founded in 1869, Durham, North Carolina, encountered the urgent need to design a criminal justice system in this unsettled environment. Because of its establishment at a pivotal moment in U.S. history, subsequent struggles with mass incarceration, and current role as a pioneer in criminal justice reform, Durham offers a rich case study for the evolution of criminal punishment at the local level. This Note provides the first comprehensive examination of Durham’s penal facilities and the decisions that shaped them from the city’s founding to the present. It also identifies factors that have contributed to the success and failure of reform efforts, raising questions about the trajectory of ongoing criminal justice reform, illustrating the constraints that reformers face, and offering lessons to communities seeking alternative responses to crime
