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Restorative Retributivism
Get PDFThe current criminal justice moment is ripe for discussion of first principles. What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration. One theory recently put forth—reconstructivism—purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system. It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts. In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good. Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories. It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted. This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment. While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological. In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism. Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism. Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations. This distinction has implications for how each theory might critique modern criminal law and punishment. For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration—skeptically, and the modern approach to punishment—both in theory and its carceral form—as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing. This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good. It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization. In sum, reconstructivism and restorative retributivismare relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment
Communion: Envisioning and Executing the Fourth National People of Color Legal Scholarship Conference — The Largest Ever Gathering of Minority Law Scholars
Get PDFWith Coronavirus Ravaging the Economy, Congress Shows Highest Tax Priorities: An Exploration of the Provisions in the CARES Act and Beyond
Get PDFThe virus known as SARS–CoV–21 (Coronavirus) swept over the United States in ways that no other crisis has affected modern society. While the Spanish Flu of 1918 has often been cited for its pandemic similarities to the Coronavirus, from an economic standpoint the attacks of September 11, 2001, and the Great Recession of 2008 are perhaps the Coronavirus’s best analogy for the modern economic carnage that has occurred. In those previous events, Congress responded with sweeping legislation like Dodd–Frank and the Patriot Act. With the Coronavirus, Congress responded with the CARES Act. Within the CARES Act are historical changes to the tax code. By exploring the provisions of the CARES Act, taxpayers receive a glimpse into Congress’s highest priorities in times of crisis. This article explores those changes in the tax law with the hope of providing taxpayers some insight into which priorities Congress views as most vital to a country in crisis
COVID–19, Housing and Evictions: A Comparative Case Study of Housing Law and Policy in the United States and Argentina through an International Human Rights Lens
Get PDFThis Note seeks to address the impact of international human rights obligations on domestic housing laws and policies through a comparative case study of Argentina and the United States. Specifically, it will discuss each country’s response to the COVID-19 pandemic, their housing obligations under international human rights law, and how each country is addressing their own unique housing and eviction crises. Finally, this Note will offer recommendations on how each country should modify their housing policies in light of the pandemic in order to comply with international human rights standards
The Istanbul Convention’s Evidentiary Requirements in the Light of Laws on Self-Defence and Mitigating Criminal Responsibility
Get PDFThe article argues that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), a comprehensive international treaty, may necessitate deep changes in its Parties’ domestic legal regimes, including reconceptualising laws on circumstances excluding or mitigating criminal responsibility and related evidentiary issues in domestic violence cases. The article first presents the theoretical underpinnings of a gendered understanding of violence and criminal laws. It then proceeds to present different approaches to law reform that have contemplated gendered laws on circumstances that exclude criminal responsibility, mostly in the context of homicides committed by battered women. Traditional approaches to law reform demonstrate how a gendered reconsideration of a single legal concept requires reconsideration of all legal principles governing the structure of that concept and causes a cascade effect. This, in turn, requires specific evidentiary considerations, including the context in which a crime is perpetrated, namely the dynamics of abusive partner relationships, social framework evidence, and the ‘demystification’ of violence against women. The article suggests that the Istanbul Convention’s emphasis on investigation and evidence and the promotion of a “gendered understanding of violence” may potentially open the question of criminal responsibility of female offenders by elevating gendered rules of evidence to gendered criminal law provisions (in a reverse cascade effect)
COVID-19 and the Caregiving Crisis: The Rights of our Nation’s Social Safety Net and a Doorway to Reform
Get PDFOn March 2020, the United States declared a pandemic due to the global Covid-19 virus. Across the nation and within a matter of days, workplaces, schools, childcare, and eldercare facilities shuttered. People retreated to their homes to shelter-in-place and slow the spread of the virus for what would become a much longer time than most initially anticipated. Now, more than a year into the pandemic, many professional and personal lives have been upended and become inextricably intertwined. Work is now home, and home is now work. Work is completed at all times of day and well into the night. Children and pets make daily appearances in our virtual meetings. In many ways, the Covid-19 pandemic has been a leveling experience. Everyone has struggled during the pandemic in some way—even the most privileged. And, yet, in many ways the pandemic has also been incredibly stratifying. The United States is now in an “unequal recession.” One of the most crucial inequalities is the impact on those who hold caregiving roles in our society. Working caregivers and women absorbed most of the unanticipated work throughout the Covid-19 pandemic—childcare, remote teaching, and care for aging parents and family members with special needs. Additionally, those same working caregivers—primarily women—are quitting their jobs in record numbers in order to manage the workload. Loss of employment is not the only impact. Working caregivers quickly became society’s fallback plan in the United States. The Covid-19 pandemic shone a bright light on the value that the United States assigns to the work of caregiving and the inequities that exist in American culture and workplaces toward the individuals who perform those roles. The ripple effects of the Covid-19 pandemic on women will be felt for years to come—by the women, their families, and our workplaces which have lost and are losing daily the important and diverse perspectives those women bring to their work This article explores the role of caregivers during the Covid-19 pandemic, both the immediate and long-term impacts on those in caregiving roles, including the disproportionate impact of caregiving responsibilities on women, and the need for long-term reform to better support and value caregivers in the United States
Divergent Strategies: A Legal History of the WTO’s National Security Exception in the Context of a Globalized Economy, 1983-2019
Get PDFThis student note provides a legal history of the World Trade Organization’s (WTO) adjudication of “national security” disputes under Article XXI of the General Agreement on Tariffs and Trade (GATT). The skeptical German historian Oswald Spengler noted, “History is direction—but Nature is extension—ergo everyone gets eaten by a bear.” Tracing the history of landmark GATT and WTO decisions from the 1983 US—Trade Measures Affecting Nicaragua case, this note weaves through the WTO’s relatively consistent reluctance to engage in domestic policy, detailing the WTO’s massive deviation from that policy in the 2019 Russia—Measures Concerning Traffic in Transit case. In doing so, this note presents a comprehensive history of the GATT and the WTO, while describing the fundamental themes of conflict presented throughout the WTO’s relatively short history, especially in the context of the national security exception. Those themes, namely the so-called “shock of the global” and globalization, and the WTO’s struggle to reconcile domestic and international interests, permeate throughout the history of the GATT and the WTO. In effect, this paper details the WTO’s challenges with national security and domestic affairs, which some speculate might lead to a self-cannibalization of the WTO, especially should the United States elect to leave the organization within the next year
Informed Consent: Disclosure of the Presentence Investigation Report Before a Guilty Plea
Get PDFThe Constitution bestows upon all accused persons the right to a trial by jury, the right to confront accusers, the right to remain silent, and the right to be presumed innocent. The law requires waiver of these rights to be done voluntarily, with the fullest possible knowledge of material consequences. Punishment is possibly the most material consequence of a guilty plea, yet criminal defendants who pleaded guilty are forced to relinquish their rights before punishment is determined. Our jurisprudence of due process prohibits this kind of practice, but it is routine in Federal court. For a guilty plea to comport with Constitutional principles, before relinquishing his rights, the accused must know what kind of information the sentencing court will consider when determining his punishment