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Doing Injustice: Exchanging One “Arbitrary, Cruel, and Reckless” Sentencing System for Another
Get PDFMarvin Frankel’s characterization of American sentencing in Criminal Sentences: Law Without Order remarkably successfully distilled ideas that were in the air and emerging. His main proposals—a sentencing commission, sentencing rules, requirements that judges explain their decisions, and meaningful appellate sentence review—would in a better America go a long way toward establishing the kind of rational, humane, and just process he imagined. Despite some early, partial successes, however, Frankel’s proposals remain largely untested. In retrospect, he underestimated, misunderstood, or chose to ignore formidable political impediments to serious sentencing reform in late twentieth century America. He also largely ignored two intractable problems, America’s extraordinarily long maximum and often—his word— bizarre authorized prison sentences and the overweening powers, then and more now, of American prosecutors. Despite all that, Criminal Sentences is a remarkable accomplishment. The ideas were ahead of their time. The writing is simple, clear, often witty, sometimes eloquent, an exemplar of good writing for lay people about legal subjects. In some gentler, kinder future its proposals may show the way to creation of American sentencing systems that take justice and human dignity seriously
Labor Control, Resistance, and the Advent of \u27Development\u27: Modalities of Governance in the British Empirce, c. 1926-1940
Get PDFThis article examines the manner in which a new approach to governance, that of ‘development,’ evolved within the British Empire over the course of the late 1920s and 1930s. Throughout the period in question, and in continuity with previous periods, the British governed their empire through a range of coercive measures designed to control the population and compel their labor. Measures adopted and frequently relied upon included the delegation of police powers to private authorities, restrictive and extractive tax, movement and labor laws, recourse to forced labor, increasing reliance on militarized police, and growth in the intelligence services. Over the course of the 1930s protests broke out in numerous territories, both in opposition to British governance as a whole and in support of better conditions of work. These protests were threatening both in their own right and insofar as they made the empire susceptible to criticism by other great powers. In response, British colonial authorities adopted a new policy approach, under the heading of ‘development.’ While this new approach was in part sincerely motivated, the vision of ‘development’ adopted was also profoundly limited
Help Me Sue a Gun Manufacturer: A State Legislator\u27s Guide to the Protection of Lawful Commerce in Arms Act and the Predicate Exception
Get PDFGun violence has become one of the central issues of our time. The number of gun violence victims, gun homicides, and mass shootings break all-time American records nearly every year. As the number of victims of gun violence rises, victims have tried—and largely failed—to hold gun manufacturers civilly liable for the weapons’ role in their injuries. The failure of these suits stems from the Protection of Lawful Commerce in Arms Act (PLCAA), which grants the gun industry broad protection against civil suits for the use of their weapons by third parties. The PLCAA provides limited exceptions to these protections, including the predicate exception, which allows for lawsuits to proceed when manufacturers knowingly violate a federal or state law applicable to the sale or marketing of firearms.
As gun violence in America began to rise in the late 20th century, both private and public plaintiffs found success in holding gun manufacturers liable for acts of gun violence. Concerned with open-ended liability, Congress passed, at the insistence of the gun industry, the PLCAA. The result has been the distortion of the litigation process to the benefit of gun manufacturers and the detriment of victims of gun violence.
Since the PLCAA’s passage, courts have largely foreclosed the predicate exception to victims. Courts have traditionally interpreted the exception narrowly. Recently, however, litigators have begun to score important wins through the predicate exception, highlighted by a ruling obtained by the Sandy Hook victims in Soto v. Bushmaster. States, such as New York, New Jersey, and Delaware, have recently begun to rewrite their laws in the hopes of capitalizing on the exception’s opening to make gun manufacturers liable. This Note analyzes and categorizes the statutory language of the laws litigated in these cases to draw conclusions for future litigation.
This Note uses those conclusions to analyze California’s recently implemented S.B. 1327 and argues that it will likely trigger the predicate exception and survive PLCAA preemption. This Note then proposes a series of considerations for state legislators to weigh when drafting predicate-exception-focused legislation. Those recommendations include better understanding the hurdles victims have in bringing lawsuits against gun manufacturers, using firearm-specific language, and considering the possibility of amending marketing statutes
Just Extracurriculars?
Get PDFExtracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools—Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)—both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect how their constitutional rights play out there? Where do coaches’ and other extracurricular advisors’ own constitutional rights fit in? The Supreme Court has not explicitly answered these questions, and its implicit answers have varied. This Article brings the key constitutional questions about extracurricular activities from the background to the foreground. It analyzes Mahanoy and Kennedy through the lens of extracurricular activities, showing that here, too, there is inconsistency. The decisions converged in terms of their outcomes—victories for the plaintiffs on their First Amendment claims against the school districts—but diverged in terms of recognizing the significance of extracurricular activities in students’ lives. The Article shows how the decisions’ inconsistency echoes that of earlier Supreme Court cases and leaves open questions about extracurricular activities that have been percolating in the lower courts for years. It then turns to psychological research about the significance of extracurricular activities in students’ lives. This research, which shows that extracurricular activities have major implications for students’ academic performance, drop-out rates, social/emotional development, mental health, likelihood of substance abuse, and risk of depression and suicide, points toward the need to take extracurricular activities seriously. The appropriate way to conceive of extracurricular activities, the Article argues, is to view them as extensions of the school day, rather than minimizing them as “just” extracurriculars. This would have important implications for how students’ constitutional rights play out in the extracurricular setting. It would mean that punishing a student for her speech by excluding her from an extracurricular activity should trigger the same sort of robust First Amendment analysis that would apply to removal from a class. It would also make clear that the voluntary nature of extracurricular activities does not mean that religious coercion is less of a concern, or that reasonable expectations of privacy are lower. And it would highlight the need for limitations on a cur- rent practice among many school districts: using extracurricular activities as a lever to regulate out-of-school conduct, such as vaccination for COVID-19 or presence at gatherings where alcohol is served, that schools cannot regulate directly. Extracurricular activities are not “just” extracurriculars—and so they need to operate in a way that is just
Criminal Terms
Get PDFCore terms used by criminal legal academics bolster the criminal system and ward off radical critique. They do this by conveying implicit messages of three types: that the criminal system is generally accurate, that it is necessary, and that it is well-intentioned and moving in the right direction. While recent legal scholarship has identified other subtle ways in which we send pro-carceral messages, it has not focused on vocabulary. We thus fall behind other entities that have announced vocabulary change, in recognition of the harm that such messages can do. We too have influence, not just through scholarly and public conversations, but through our framing of the system for our students, who will help determine its future. We must thus explore the possibility of, and obstacles to, change in our criminal terms
Gender-Based Religious Persecution
Get PDFPeople fleeing gender-based violence in the home face an uphill battle when seeking asylum in the United States. Through the lens of public and private spheres, this Article explores the underutilized religion ground for asylum for cases involving gender-based violence in the home—i.e., the private sphere. This Article argues that if an individual imposes a patriarchal practice on an asylum seeker in the private sphere and justifies that practice using religion, the asylum seeker’s resistance to that practice should constitute religious expression. The religion ground protects individuals who are persecuted because of their religious beliefs and religious expression. It typically is invoked by individuals fearing persecution in the public sphere for activities such as proselytizing and communal worship, where proving the link—the nexus—between the persecution and the asylum seeker’s religious beliefs or expression is relatively straightforward. Asylum seekers infrequently invoke the religion ground for abuse in the private sphere, however, due to that nexus requirement. To satisfy nexus, an asylum seeker must show that the persecution is on account of their protected characteristic, not the characteristic of the abuser. At first glance, claims involving gender-based violence in the private sphere seem to involve individuals imposing their religious beliefs on others, which generally would not qualify for asylum. Where an asylum seeker resists a patriarchal practice in the home that is justified by religion, that resistance should constitute a “private expression” of religion, regardless of whether the asylum seeker frames their resistance in religious terms. If the asylum seeker is harmed for their opposition to a patriarchal practice justified by religion, the persecution is on account of their religious views opposing those of the persecutor and thus satisfies the nexus requirement. This Article thereby reframes gender-based violence in the private sphere as gender-based religious persecution. While encouraging a broader interpretation of the religion ground to better protect individuals fleeing gender-based violence, this Article concludes with a caution against essentializing religion and attributing such violence to a religion wholesale
Leaving Langdell Behind: Reimagining Legal Education for a New Era
Get PDFFor most of us (the Editors of Volume 107 of the Minnesota Law Review), the summer before starting law school was characterized by a global pandemic and a racial reckoning. Like many Americans, we experienced a toxic mix of feelings of isolation, hopelessness, and even anger; and we yearned for the requisite skills and credentials to fight the injustices and inequities all around us. Our 1L year was a roller coaster ride: we experienced the ordinary challenges of the 1L curriculum through our Zoom screens while simultaneously watching a meme-fueled retail investor uprising, an attempted overthrow of a presidential election and attack on our nation’s capitol, the trial of George Floyd’s murderer, and the breakdown of all trust in government on our phones and televisions. So why, after all these events and out of all the possible topics, did we vote to make legal education the focus of our Symposium? We chose it because we recognize the importance and urgency of legal education reform. We can see how central the education we are receiving is to our ability to respond to these issues—and how central lawyers are to any hope for change. Though we appreciate our dedicated professors and our excellent law school, we recognize that the structure of American legal education is merely preparing us to—as Professor Bennett Capers puts it—make change only on the margins. We recognize that if our system of government and laws is ever going to properly and equitably serve the people it’s supposed to, we need lawyers who are prepared to completely reimagine the system. And to do that, we need to reimagine legal education. It has been more than 150 years since Christopher Columbus Langdell first brought the case method to the law school classroom, and—though a few changes have been made on the margins, like the addition of skills courses and clinics—the basic foundation of law school remains the same. We need true structural change to break free from the old way of thinking. As Capers argues, we need to see law schools “no longer as a white space (in terms of demographics, or what is taught, or how it is taught), but as a white space (as in a blank page, at once empty and full of possibilities).” From this vantage, we designed a symposium that would question and re-envision the core pillars of legal education
Law Students Left Behind: Law Schools\u27 Role in Remedying the Devastating Effects of Federal Education Policy
Get PDFDue to the unintended consequences of misdirected federal education policy, students come to law school with underdeveloped critical thinking and cognitive adaptability skills. As the products of the No Child Left Behind Act (NCLB) and its progeny, students educated in the United States after 2002 excel at memorization and multiple-choice exam strategies but were not afforded the practice needed to fully develop other critical professional attributes. This is problematic as these are the very characteristics law students need to be a successful student and lawyer. Further, legal employers are demanding their new lawyers possess these capabilities upon graduation from law school. The Uniform Bar Exam may also be substantially changing to test these essential qualities. Because federal education policy, exemplified by NCLB and its progeny, has the effect of encouraging memorization and narrowing the K–12 curriculum, students experienced a less holistic education which would have given them more training in and practice of necessary professional skills. These statutes’ focus on high-stakes testing has created holes in the K–12 education. This Article analyzes these vital skills, discusses what led up to the federal statutes and policy, focuses on the federal statutes at fault, and explores what higher education is doing to address the deficits. The Article then argues law schools and professors can and should assist their students in developing these attributes by adapting teaching methods, improving institutional and classroom assessments, and broadening the curriculum. Law schools owe that to their students. The educational background of their law students has changed, making static legal education outdated. Drawing on interdisciplinary methods, education law and policy, educational science, and models from undergraduate institutions, the Article makes theoretical and concrete suggestions to help law students bridge this educational gap
Secoundary Courses Taught by Secondary Faculty: A (Personal) Call to Fully Integrate Skills Faculty and Skills Courses into the Law School Curriculum Ahead of the NextGen Bar Exam
Get PDFThis Essay focuses on the disconnect between what law schools say they value and who they value. The Essay highlights how law faculty and administrators often carry a survivorship bias that may prevent them from fully acknowledging or accepting that the law school experience may be challenging and unwelcoming for many students. The Essay also challenges members of the legal academy, particularly those solely in the doctrinal space, to question their superiority bias so that they can better support skills training and treat and value faculty who teach skills courses. This Essay provides commentary on reimagining legal education for a new era—one that fully integrates skills faculty and skills courses into the law school curriculum ahead of the NextGen bar exam. The Essay includes observations and personal reflections—both from my work as a skills and academic support professor, as well as my experience as a first-generation student of color who almost quit law school. I summarize my struggles in the traditional law school classroom, where only certain skills and experiences seemed to be valued and appreciated, and I discuss my experience in the legal academy, where I (and many others) may often be considered a secondary faculty member who teaches secondary courses