The last three decades have seen the rise of an international innocence movement that has forced participants in diverse criminal justice systems to confront their systems’ fallibility, previously thought more theoretical than real. The public acknowledgment of that fallibility has led to the creation of new institutional mechanisms to re-examine old convictions. This short essay prepared for a symposium issue of the Rutgers University Law Review on the theory of criminal law reform compares the error correction institutions created in the United Kingdom, Canada, and the United States, three English-speaking countries with common law roots and an adversarial structure, through the lens of sociological theory. It finds that, consistent with what that literature suggests, the institutions created in each country reflect the circumstances in which “innocence consciousness” arose therein and the pre-existing institutional arrangements and cultural frames. This analysis offers valuable insights for reformers around the world who are considering how to address wrongful convictions.
The Trump Administration’s (arguably) most polemic immigration policy — Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States — offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal immigration agenda pushed by the Trump Administration. These efforts to resist rely upon self-determined local and state policymaking or the federal courts to sustain sovereign autonomy. However, amidst the more well-known examples of “uncooperative federalism,” such as the travel ban and sanctuary cities, is a property law angle to “cooperative federalism.” A recently introduced bill in Congress to limit the federal government's takings power along the border may be viewed not only as a political reaction to an arguably heavy-handed federal immigration policy, but an aide-memoire to an old cooperative system of land acquisitions between the federal government and the states in the early republic. This Essay sheds light on the old cooperative system of land acquisition between the federal government and the states in light of today’s debates over land acquisition for the construction of an international wall.
Legal theory has long grappled with the question of what features a rule system must have for it to be considered “law.” Over time, a consensus has emerged that might seem counterintuitive to most people: a legal system does not require punishment for the disobedience of its rules (“sanctions”), nor must it be obeyed by the people it purports to apply to (it need not have “efficacy”). In this Article, I do not challenge these conclusions, but instead stake out an attempt to reconcile these claims with other intuitions about law. I argue that while neither sanctions nor efficacy are alone determinative of legal validity, legal systems must at least aspire to be efficacious. Sanctions, then, may be seen as but one optional manifestation of the crucial background quality they represent: a readiness to adapt and react to the external realities surrounding a legal system’s attempted implementation.
Prosecutorial misconduct has stubbornly remained a troubling feature of the American criminal justice system. Judges and scholars have bemoaned its persistence, and some have warned that it threatens to reach epidemic proportions. The problem is that the current approaches we deploy to surface, investigate, and stop such misconduct are inadequate to the task. Too often, the courts, scholars, and the public misread the scope of the problem. They want to treat responses to prosecutorial misconduct as a product of individual bad actors. These individual "bad apples" are viewed as outliers and disconnected from office leadership. But the misconduct is rarely just an individual failure and more often encompasses an array of key players throughout the prosecutor's office. Prosecutorial misconduct flows from an environment that tolerates it, oversees it, and encourages it. So, rooting out the problem of misconduct necessarily involves more than weeding out a few bad individuals; it requires new ways of defining the conduct and coordination of the responses to capture the scope of this misconduct. This Article explores the dimensions of prosecutorial misconduct and challenges the prevailing notion that misconduct is a singular act by a corrupt individual. It contends, instead, that the chronic increase in instances of prosecutorial misbehavior stems from our failure to understand the scope and frequency of misconduct coupled with our tendency to minimize or cover up the behavior of prosecutors. This article proposes treating misconduct as obstruction of justice as a preliminary step toward recognizing and signaling the gravity of the stakes involved. It then calls for better coordination, more thorough data-gathering, and more focused state and federal intervention to investigate and deter misconduct.
Can undocumented debtors benefit from bankruptcy relief? If so, would they consider pursuing bankruptcy relief? This Article seeks to answer these questions through an empirical study designed to explain why so few undocumented debtors appear in the bankruptcy system, as well as to tell the broader story of undocumented debtors' experiences with debt in our economy. Specifically, the empirical study covers a broad array of questions, including what types of debts undocumented immigrants incur, experiences of undocumented immigrants with debts over the past three years, and undocumented immigrants' experiences with the bankruptcy system. As this Article will show, these questions are all tightly interknit: Income shortfalls can make borrowing a necessity for this group, but borrowing is often accompanied by feelings of shame and trepidation. And although the ambivalence around borrowing is overcome by necessity-such that the vast majority of study participants had borrowed-shame and fear prevented study participants from seeking bankruptcy relief. Overall, the study demonstrated that undocumented immigrants face internal as well as external barriers to bankruptcy relief. Although many participants in the study experienced over-indebtedness and expressed needing relief that bankruptcy could offer, they did not view bankruptcy as an option. Bankruptcy can be an important tool for restoring financial security and dignity to the economically disenfranchised. Making this a meaningful option for undocumented immigrants will require the combined efforts of bankruptcy practitioners and administrators, advocates, policymakers, and community organizations.
