16178 research outputs found
Sort by
Predatory Decarceration
Get PDFThis Essay critiques the bipartisan criminal legal system reforms that have emerged over the past several years. These reforms result in predatory decarceration that exacerbates the precarious conditions of returning prisoners and supervisees—as well their communities—and distributes the benefits of reform upward. Taking an abolitionist perspective and drawing an analogy to Keeanga-Yamahtta Taylor’s concept of predatory inclusion, this Essay contends that these reforms offer freedom from incarceration only in exchange for productivity and compliance with non-incarceration penal controls such as community supervision sentences, which almost universally include work requirements. Thus, the reforms, while reducing incarceration rates, ultimately reinforce an ultraliberal order focused on austerity and ensuring a supply of cheap, surveilled labor. These reforms co-opt social movement goals, privatize reentry, and link freedom to economic productivity, thereby perpetuating the punitive social and economic structures they purport to reform
Torts: Doctrine and Process
No full textThere are many torts textbooks on the market, and each one serves its authors\u27 particular pedagogical objectives as well as their sense of the needs of the students who will use it. This textbook was designed with three principal objectives in mind:
First, this book is intended to cover a complete first-year course in a way that is appropriately rigorous and that best meets the highest intellectual and analytical capabilities of students. The cases and materials in this book are designed primarily for extraction learning: they are framed so their doctrinal context is clear, but as with law practice, the rule and other relevant information are generally derived through careful reading and analysis.
Second, this book will prepare students to litigate difficult torts issues in the most contemporary settings. To this end, the approach is primarily doctrinal, and where other approaches--normative, economic, philosophical, and theoretical--are included, students are encouraged to think about their utility and merits as they implicate and fit within the law\u27s existing doctrinal structure.
Third, materials feature the relationship between the black letter or substantive law of torts, the rules of civil procedure, and the decisions and judgments required of practicing lawyers. The goal is for students to see torts where they exist in the practice of law at the juncture of the rules that govern the litigation process and the choices lawyers make using the facts and law to build arguments within those rules.
This books exists to combine these three objectives in a way that provides the strongest possible educational foundation for students learning torts.https://scholarship.law.duke.edu/faculty_books/1019/thumbnail.jp
Being an Icon: Reflections on Sandra Day O\u27Connor
Get PDFJustice Sandra Day O\u27Connor\u27s passing in December inspired an outpouring of tributes to the rancher\u27s daughter who blazed a trail through Stanford, legal practice, the Arizona legislature, and the state trial and appellate courts to arrive at the Supreme Court of the United States. She served as the Court\u27s 102nd Justice and the first woman Justice in the institution\u27s almost 200-year history. Justice O\u27Connor was both a world historical figure and a one-of-a-kind personality. She has been justly celebrated for her tremendous accomplishments as well as her extraordinary personal grace. This reflection offers some insight into what she looked like up close. It considers her professional bridge-building, her unique strength of character, her commitments as a judge, and what her passing signifies for our democracy
Next Steps in Online Courts: Accelerating Access toJustice Through Court Technology
Get PDFFor more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic disputes and small claims lawsuits. Yet the pace of innovation—at least in the eyes of some—has been sluggish and episodic. Courts to date have stuck to the comfortable shallows with their ideas, designing technology, for example, to facilitate private dispute resolution rather than incorporating technology into the adjudication process itself. In this article, I argue that state courts are beginning to swim beyond the breakers, and I offer Alaska as a case in point. Building on its years of experience using technology to mitigate unique geographic and demographic barriers and armed with the lessons on display in other states, Alaska is innovating. It is still early, and Alaska\u27s approach to ODR has important limitations. Nevertheless, the state’s vision for its courts crosses new waters not only by soon making formal adjudication more accessible through asynchronous text-based proceedings but also by incorporating simple, thoughtful refinements to existing designs and by creating opportunities to leverage out-of-state resources
Liberty, Safety, and Misdemeanor Bail
Get PDFThe highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question is Harris County, Texas, the third largest county in the United States, which has implemented the largest-scale and farthestreaching constitutional remedies in a misdemeanor bail system. In 2019, after years of federal litigation and a preliminary injunction finding pervasive constitutional violations, Harris County entered a Consent Decree requiring comprehensive reform. This Article describes the constitutional remedies this novel Consent Decree set out and the implementation of those remedies. This Article also addresses the central question of bail: whether pretrial release comes at a cost to public safety.
We find that the constitutional rights protections of the Consent Decree appear largely successful in that people are now promptly freed in misdemeanor cases without the requirement that they pay cash bail. More surprising, perhaps, we find that public safety has also powerfully benefited. We describe a steady decline in the numbers of both misdemeanor arrests and rearrests. Few could have predicted with any certainty what the results of this large-scale bail reform would be. The result suggests there is no necessary trade-off between constitutional rights and public safety. These findings have powerful implications for rethinking the structure and application of the Salerno balancing test and for jurisdictions considering wholesale bail reform
International Human Rights in Asian Constitutions
Get PDFInternational law is integrated into national constitutions across the world. Particularly, the convergence of national constitutions with international human rights (IHR) law has been a global trend. Asia has been underexplored in the global scholarship on constitutional convergence. This Article seeks to make both theoretical and empirical contributions by exploring three models of convergence with IHR law in seven Asian constitutions: convergence impelled by international inducement in post-war and post-conflict states (Japan and Cambodia), convergence propelled by the domestic precommitment of new democracies (South Korea and Indonesia), and convergence compelled by the international socialization of the socialist states (China, Laos, and Vietnam). Formal convergence creates the condition for several Asian constitutional courts to engage with IHR law. Convergence is not merely a top-down project. This Article additionally proposes a bottom-up theory of discursive convergence, which holds that citizens\u27 public discourse can influence the incorporation of IHR into constitutions
Restoring the Citizenship of the Soldier
Get PDFModern jurisprudence consistently treats the U.S. military as legally distinct, imposing different standards for service members’ constitutional rights, Federal Tort Claims Act lawsuits, and Title VII protections than it does for their civilian counterparts. The legal foundation for this treatment relies in large part on the constitutional military structure, which empowers Congress to prescribe rules and regulations for the “land and naval Forces” and exercise extensive power over “armies.” Usually, both entities—armies and the larger “land and naval Forces”—are considered synonymous with the modern-day all-volunteer force (“AVF”). This interpretation, though, neglects the foundational role the constitutional militia played in composing the larger armed forces.
This Note proposes that the “land and naval Forces” is best understood as including both armies and militias, together creating the military as a whole. It advances this proposition through a close analysis of the text and history of the Army and Militia Clauses—a project that has not yet been undertaken with an eye toward service members’ rights. The evidence from this inquiry indicates the militia establishment was part of a deliberate effort to keep the armed forces integrated with the larger political community. As a result, this Note advances a constitutional reading that reengages with the principles behind the Founding-era militia system. In doing so, it questions modern judicial doctrines that leave military personnel legally siloed off from the general U.S. citizenry and advocates for more robust protection of service members’ rights
Power-Conscious Legal Work: Building a Roadmap for Rural Access to Justice Through Trust, Accountability, & Trauma-Informed Practices
Get PDFThe importance of trauma-informed practices has never been greater. In the United States, most of the population has experienced at least one traumatic event in their life. Experiencing a traumatic event may have long-lasting impacts on physical health, including disruption to all major system functioning. Mental health impacts may include behavior changes, memory challenges, inability to complete routine tasks, difficulty with interpersonal relationships, and other symptoms associated with Post Traumatic Stress Disorder. Extant literature examines the association between past trauma experiences and later interactions with the civil justice system, including litigant conceptualizations of legal system engagement as a traumatic event in and of itself. While the prevalence of traumatic experiences is staggering, there are practices that legal service providers can implement to mitigate the effects of trauma and the risk of retraumatization. Additionally, these trauma-informed and trauma-responsive practices have been shown to help lessen the effects that trauma exposure response —the impact from working with those in trauma—have on the practitioner.
A unique reality of service provision in legal vacuums is the dual geographic and social proximity of providers to the communities that they serve. We intentionally use the term legal vacuum in lieu of legal desert because desert connotes a naturally occurring environment, whereas absence of legal help should not be considered natural. This is true for service providers in both rural areas, generally, and in large states with remote areas, in particular. Scholarship-activism at this intersection of human need and legal power emphasizes the importance of place-conscious advocacy that centers rural communities\u27 understandings of and existing practices for problem-resolution; as rural communities know well, rural needs require rural- and community-responsive services. In recognition of the convergent ways that trauma, legal vacuums, and community harm are replicated by place-based forms of power, this piece provides a roadmap for advancing power-conscious legal work, or legal problem-solving that is grounded in linked values of trust, community accountability, and trauma-informed practices.
In examining the intersecting harms that are navigated by legal practitioners, we can understand trauma-informed practices and place-based notions of accountability as service benefits—not labor burdens—to the work of all service providers. By centering rural, Native, and historically marginalized notions of power, this Article looks to Alaska as a source for deep reflection on how the U.S. legal profession might advance access to justice for rural communities through concrete forms of power- and place-conscious work. Reflecting on our own work to advance community-accountable legal empowerment initiatives, we join fellow innovators in reimagining the place and potential of justice-making everywhere
Budgets and the Timing, Intensity, and Composition of Interest Group Lobbying in the U.S. States
Get PDFThis paper examines state level lobbying data to determine how budgeting affects the timing, intensity and composition of lobbying expenditures. Using a database of all available lobbying expenditures in the U.S. states ranging up to 25 years, the paper shows interest group lobbying increases substantially during the budgeting process, and the budgeting process is unlike other issues lobbyists face. Spikes in lobbying during budgeting are driven primarily by business groups, and these business groups account for most of the changes on the margin in lobbying activity. Moreover, even groups relatively unaffected by budgets lobby more intensely during legislative budgeting, consistent with the “Christmas tree” effect of appropriations and budget bills
We\u27re Not Selling Ice Cream Here : PLCAA, the Predicate Exception, and Providing Relief for Plaintiffs
Get PDFIn 2005, the Protection of Lawful Commerce in Arms Act (“PLCAA”) put a stop to most civil litigation against the firearms industry. In the nineteen years since, victims of gun violence have attempted to bring claims against members of the firearms industry, with varying degrees of success, using an exception to PLCAA known as the predicate exception. Recently, states have begun to pass legislation creating a right of action for plaintiffs to take advantage of the predicate exception. Whether the new legislation will be successful, however, remains to be seen.
This Note examines all of the available cases considering the predicate exception, revealing areas where the current regulatory framework fails plaintiffs and the distinguishing characteristics of successful cases. In light of this analysis, Part III discusses recent state legislation, identifies gaps in the legislation, identifies areas for improvement, and forecasts challenges to the legislation. The Appendix contains a chart organizing the cases that consider the predicate exception by whether they were successful and the predicate statute considered by the court in each case