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Reconceiving Coercion-Based Criminal Defenses
Get PDFCoercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminal defenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon of interpersonal abuse in which one person pervasively regulates the choices of another. Coercive control is sometimes carried out through violence or threats of violence but often through ostensibly non-violent forms of degradation (such as humiliation and isolation). Coercive control is often evinced in abusive intimate relationships, including in human trafficking. People subject to coercive control are undeniably coerced. Yet the wrongful pressure model cannot adequately explain why. Those subject to coercive control are ineligible for coercion-based criminal defenses, such as duress and affirmative defenses for victims of human trafficking, in part because of the inadequacy of the wrongful pressure model. This Article articulates and defends an alternative understanding of coercion that, after philosopher Scott Anderson’s theory of the same name, we call the “enforcement approach” to coercion. According to the enforcement approach, coercion involves the coercer’s using power to determine what the target will or will not do. The enforcement approach is superior to the wrongful pressure approach as an explanation for what makes coercion wrong and why being subject to coercion should provide a defense to criminal liability. Furthermore, the enforcement approach better explains how coercion operates pervasively, such as in coercive control contexts. The enforcement approach also invites a broader rethinking of coercion-based criminal defenses. The enforcement approach grounds a model of criminal defense for those subject to coercive control that would supplement existing defenses
Bizarre Love Triangle: The Trilateral Responses to Tame the United States-Mexico Border
Get PDFThis article explores the role that multilateral agreements among Canada, Mexico, and the United States, and bilateral agreements between the United States and Mexico, have played along the border. Part I of this article explores the Washington Consensus and the culture of accumulation, plunder, and extractivism that it has engendered. Part II delves into various economic integration pacts that are part of the Washington Consensus starting with the NAFTA, then the Security and Prosperity Partnership (SPP), and finally, the United States-Mexico-Canada Agreement. It concludes that neither agreement make the border safer, nor make its working people more prosperous
The Black-White Paradigm’s Continuing Erasure of Latinas: See Women Law Deans of Color
Get PDFThe Black-white paradigm persists with unintended consequences. For example, there have been only six Latina law deans to date with only four presently serving. This Article provides data about women law deans of color, the dearth of Latina law deans, and explanations for the data. It focuses on the enduring Black-white paradigm, as well as other external and internal forces. This Article suggests how to increase the number of Latina law deans and emphasizes why it matters
On the Meaning of Color and the End of White(ness)
Get PDFThis Article explores the history of the term “people of color” and its current status in a country struggling to overcome its racist origins. The murders of Trayvon Martin, Michael Brown, George Floyd, Breonna Taylor, and so many other victims of state violence have generated profound anger, calls for action, and demands for dialogue. It is undoubtedly simplistic to assert that words matter. But accurate descriptions are essential for honest conversations, and words convey meanings beyond their syntax. In discussions about race and racial identity, the term “people of color” is routinely used as the antipode to the white community. Yet little thought is given to its etymology or meaning. Through the use of historical documents, including many from the colonial era, and recent data compiled from search engine queries and social media activity, this Article reveals that the term “people of color” has a rich yet complicated heritage. For centuries, “people of color” was a term with legal significance. While it no longer defines rights, its use still matters. Today, we should embrace this collective terminology because it reflects a shared history among diverse communities and generates power against hierarchy. Because the white community serves as the antipode to people of color, we must also interrogate this other example of collective terminology. To engage in honest conversations about race, power, and privilege, it is time to separate white(ness) from the white community
Forecasting the How and Why of Corporate Crime’s Demise
No full textThe law of corporate criminal liability has long elicited deep criticism from many quarters. Respondeat superior, the judge-created attribution rule that affixes criminal blame to corporations, enables the government to exercise too much power while securing too little accountability. It is hardly surprising, then, that the Journal of Corporation Law has published a symposium volume called, “Imagining a World Without Corporate Criminal Law,” of which this article is part.My contribution predicts that corporate crime’s demise will arise, not from a direct attack, but rather from a series of indirect punches. Respondeat superior premises the corporation’s liability on that of one its agents. Corporate liability therefore relies quite a bit on individual criminal liability. And all signs point to a much narrower and patchier world of individual criminal liability, particularly where white-collar crime and complex investigations are concerned. These trends cannot possibly help enforcement agencies tasked with investigating and prosecuting corporate wrongdoing.This Article maps a scenario in which white-collar offenses become narrower and more difficult to prove. If federal white-collar crime narrows in scope, so too should the government’s ability to credibly threaten corporate offenders. Several elements of this prediction have already fallen into place; others appear to be on the horizon. Federal prosecutors would do well to read the handwriting on the wall. If we continue along the same trajectory, we can expect a steady erosion of the investigative and enforcement powers the government has long enjoyed.Rather than try to blunt this process, policymakers should shift their attention to other legal actors who might fill this vacuum. A corporate enforcement system untethered to respondeat superior might produce a type of liability that is more responsive, more sincere, and perhaps, more coherent