Redeeming Justice

By: Terrell Carter, Rachel López & Kempis Songster

Stepification

By: Mitchell Chervu Johnston

Pure Privacy

By: Jeffrey Bellin

Man Camps and Bad Men: Litigating Violence Against American Indian Women

By: Ana Condes

Identifying the Most Democratic Institution to Lead Criminal Justice Reform

By: Harry B. Dodsworth

Regulating During Emergencies

By: Michael Barsa & David Dana

The So-Called Series-Qualifier Canon

By: Adam G. Crews

Redeeming Justice

By: Terrell Carter, Rachel López, Kempis Songster | October 10, 2021

Approximately three decades ago, two of us, Terrell Carter and Kempis Songster, were sentenced to life in prison without the possibility of parole. The U.S. Supreme Court has said that this sentence, effectively an order to die in prison, represented a legal determination that we were irredeemable. In this Article, with insights from our coauthor and friend, human rights scholar Rachel López, we ask: What does it mean for the law to judge some human beings as incapable of redemption? Isn’t the capacity for change core to the human condition, and shouldn’t that be reflected in the law? This Article marries human rights law with our lived experience to argue that the capacity for redemption is an innate human characteristic. By documenting the dehumanizing effect of codified condemnation and the struggle for humanity after a person has been found irredeemable in a court of law, we seek to show why all humans should have a legal right to redemption—a right embedded in the Eighth Amendment through the latent concept of human dignity.

The reading of the Eighth Amendment we call for would require a dramatic reimagination of the U.S. criminal legal system into one that elevates humanity, not deprives it. One that creates the opportunity for healing and human development, not denies it. One that facilitates the human capacity for redemption, not forbids it. One, in other words, that recognizes that change is always possible. Redeeming justice thus requires that legal systems not make unalterable decisions about a human being’s capacity for change. At a bare minimum, this means that all sentences should be reviewable, with release possible after someone redeems herself. No person should be permanently deprived of her hope for freedom.

Pure Privacy

By: Jeffrey Bellin | October 10, 2021

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy’s appeal has grown beyond those authors’ wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, access to contraception, loud neighbors, telemarketing calls, and on and on. This “pluralistic turn” has made privacy popular, but this popularity comes at a cost. Lacking precision, ubiquitous invocations of privacy tend to cloud rather than clarify, raising the temperature of academic and policy debates while generating little light.

This Article proposes a baseline definition of “privacy” to anchor legal discourse. The definition responds to privacy skeptics by identifying a core of pure privacy that can and should be protected. But it also pushes back on privacy pluralists by insisting on the need for precision. In a post-pandemic world, policymakers face powerful temptations to override longstanding privacy protections and countervailing pressures to abandon lifesaving policies in the face of vigorous privacy objections. Precisely identifying what is at stake in these debates can help to clarify the difficult choices that will shape the future.

Man Camps and Bad Men: Litigating Violence Against American Indian Women

By: Ana Condes | October 10, 2021

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation would rely upon the “Bad Men” clauses in 1867 and 1868 tribal–federal treaties, which mandate government action when “bad men among the Whites” commit crimes against tribal members. Indian law canons of construction urge that these treaties be construed in favor of the tribes and interpreted in the manner in which historical tribal signatories would have understood them. Under the doctrine of parens patriae, tribes could bring Bad Men lawsuits on behalf of tribal members who have been harmed. Because Indian signatories to the Bad Men treaties would have understood them to impose a positive and prospective obligation to protect, tribes ought to be able to use such litigation to compel federal protection for the women victimized as a result of pipeline construction.

Nw. U. L. Rᴇᴠ.