This Essay argues that Congress can and should replace the existing state-law defamation regime with a federal defamation law. Doctrinally, a federal regime would better fit the modern, boundaryless digital-communications paradigm. Practically, it would benefit press organizations by ensuring their access to the federal courts in defamation cases.

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This Preface provides an overview of NACDL’s 2020 Presidential Summit and Sentencing Symposium, produced in partnership with the Georgetown University Law Center and theAmerican Criminal Law Review.

On October 21, 2020, Chief Judge Colleen McMahon delivered the keynote address for the third day of the National Association of Criminal Defense Lawyers (“NACDL”) and the American Criminal Law Review’s (“ACLR”) 2020 Presidential Summit and Symposium, Prison Brake: Rethinking the Sentencing Status Quo. Her Remarks—which focused on offender resentencing since the pas-sage of the First Step Act and in

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences. State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding

In a series of Eighth Amendment cases referred to as theMillertrilogy, the Supreme Court significantly limited the extent to which minors may be exposed to extreme sentences. Specifically, in this line of cases the Court abolished capital punishment for minors and narrowed the instances when minors may be sentenced to life without parole. Only minors convicted of homicide who are found to be “in-corrigible”

The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the

Though incarceration has almost always been a core aspect of punishment in the United States, a critical consideration of the basic nature of prison environ-ments is often omitted from conversations about reform. Instead, and for myriad reasons, modern correctional policy had emphasized the punitive over the humane. In this way, America is an outlier, distinct from many other Western nations. From

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment’s prohibition on cruel and unusual punishments. In recent years, though, the Court has expanded the Amendment’s scope to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to for-bid

Correctional culture is notoriously difficult to change. Simply recognizing that there is a problem and wishing for better prisons is not enough to engender meaningful reform. It takes hard work, dedication, and continuous support from multiple stakehold-ers. At its core, however, improving carceral systems requires a team of people dedi-cated to change. The Commission on Safety and Abuse in America’s

Prosecutors are given broad freedom to conduct their investigations throughout the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal

Because true innocence is unknowable, scholars who study wrongful convictions and advocates who seek to vindicate the innocent must use proxies for innocence. Court processes or official recognition of innocence are the primary proxy for innocence in research databases of exonerees. This Article offers an innovative alternative to this process-based proxy: a substantive checklist of factors that indicates

There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, systemic, and societal factors constrain the administration

A criminal conviction often, if not always, involves the imposition of financial penalties on a defendant. Such penalties can be catastrophically debilitating for defendants. With such severe consequences possible, it is of little wonder the Eighth Amendment’s prohibition on excessive fines exists. However, the exact state of the law surrounding the Excessive Fines Clause is anything but clear, especially

It is easy to buy into the idea that prosecuting corporate employers of undocumented workers is an equitable alternative to mass raids where undocumented workers are arrested and placed in removal proceedings. The media response after a highly publicized set of ICE raids in August 2019 reflects an emerging consensus that the DOJ and federal agencies should mete out the consequences of working without

As President Trump’s administration has cracked down on immigration enforcement, places of worship have increasingly entered the fray to offer shelter to undocumented immigrants as part of a broader sanctuary movement. Over the same period, case law surrounding religious freedoms has dramatically shifted and vastly expanded the protections afforded to religious exercise. This Note describes the legal

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there has been plenty of commentary criticizing the Court’s existing clearly-established-law test, there has been no thorough historical analysis examining the complicated subject of state-officer immunities under nineteenth-century common law. Yet the legitimacy of state-officer immunities, under the Court’s

Intersectionality surfaces the experiences of disabled people of color, but it tells us less about the malleability of this type of discrimination. This Essay contends that aesthetic theories of structural subordination can supplement emerging discussions on intersectionality by underscoring the visual and emotional roots of racial and disability discrimination.  

Large digital platforms often are not winner-take-all markets. As a result, antitrust has a role but breakup is rarely the right solution. Better options include incentivizing competition within the platform or forcing interoperability or information sharing. Current merger policy, however, is poorly designed to address platform acquisitions of small firms.  

This Review examines the significance of Henry Louis Gates, Jr.’s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation’s legal system and for the regulation of race in the legal profession.

Even as Congress has gradually improved the military justice system, its members have unjustly interfered with individual cases. This Note surveys the complex history of Congress’s involvement with military justice and proposes reforms to preserve productive oversight and reduce destructive interference.

In southeastern Louisiana, plantations still line the Mississippi River, surrounded by Black communities who experience these estates as sites of racialized harm. This Note explores the use of eminent domain to achieve land-based reparations for these descendants and draws lessons for reparations at other sites of historical and continued subjugation.

This ten-year retrospective on the Mental Health Parity and Addiction Equity Act (MHPAEA) traces the law’s ambivalent track record to its merely partial adoption of a cooperative-federalist framework. Drawing from enforcement data, state settlement documents, and other cooperative-federalist statutes, this Note suggests policy interventions tailored to improve enforcement.

Abstract This study used violent victimization data from the National Crime Victimization Survey (1994–2018) to examine whether criminal justice interventions (i.e. reporting to the police and arrest) for youth-perpetrated violence were more likely to occur in school than outside school. On average, violence at school was 8.4 percentage points less likely than violence outside school to be reported

This paper offers a critical synthesis of the articles in this Special Issue with a view to assessing the concept of “algorithmic regulation” as a mode of social coordination and control articulated by Yeung in 2017. We highlight significant changes in public debate about the role of algorithms in society occurring in the last five years. We also highlight prominent themes that emerge from the contributions

Abstract The present study examines the impact of Proponte Más, a family-based, multiple gated prevention program in Honduras. The primary goal of Proponte Más is to reduce the risk factors for problem behavior associated with youth in Honduras through family-based intervention services. At risk youth were randomly assigned to a treatment and control group. Data for the study were sourced primarily

Abstract Much remains unknown about how disability intersects with victimization. Relying on data from the 2016- 2019 nationally representative self-reported National Crime Victimization Survey, we examine if type of disability is associated with different health outcomes when someone is violently victimized. Through logistic regressions, we examine if the individual is injured (or not) and, among

Abstract A popular model of legal socialization contends that interactions with authority figures impact the internalization of pro-social values and beliefs, including authority legitimacy. Simultaneously, subcultural theories, including the code of the street, emphasize that negative contextual and experiential factors promote subcultural beliefs. The current study examines whether legal socialization

This paper explores the extension of collective governance to sectors without collective governance tradition. We introduce the concept of state-led bricolage to analyze the expansion of the Swiss apprenticeship training system – in which employer associations fulfill core collective governance tasks – to economic sectors in which training had previously followed a school-based and state-oriented logic

The article asks the following question: Why do policymakers choose one (or more) agent(s) to perform new delegated policy functions? In order to shed light on the factors that drive policymakers' choice of a single or a multiple agencies delegation framework, the article investigates policymakers' choice to delegate macroprudential regulatory responsibility to either the central bank or to a committee

Regulators and other governors rely on intermediaries to set and implement policies and to regulate targets. Existing literatures focus heavily on intermediaries of a single type – Opportunists, motivated solely by self-interest. But intermediaries can also be motivated by different types of loyalty: to leaders (Vassals), to policies (Zealots), or to institutions (Mandarins). While all three types

Confronted with a new wave of criticism on the in effectiveness of its development programs, the World Bank embarked on a revitalization process, turning to private investors to finance International Development Association projects and widening its mandate. To explain these adaptation strategies of the World Bank to regain relevance, this piece draws on organizational ecology and orchestration scholarship

The implementation of preventive anti-corruption agencies (ACAs) has been a significant public administration regulatory trend of the last two decades. This article endeavors to better understand how preventive ACAs build inter-agency collaboration and legitimacy. Rather than analyzing ACAs in isolation, this article proposes a novel understanding of autonomy-building by accounting for the underlying

Judicialization scholarship suggests that states must seek the de-judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de-judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been

Abstract A plea for scaling up (i.e., examining the global dimensions) and expanding out (i.e., considering indirect, alternative and complementary measures) of local crime and criminal justice phenomena is made in this paper. The implications and benefits of doing so are illustrated by utilizing the study of unresolved (or cold case) homicides, which are usually conceived as events responsive to localized

Abstract Fridel's response to my critique of her Justice Quarterly article is a “nonresponse response.” She does not actually respond to any of my criticisms, and does harm to the field of research on guns and violence by encouraging scholars to believe two falsehoods: (1) that instrumental variables methods are not feasible as a technique for addressing causal order issues, and that (2) that the percent

ABTRACT Following Kleck’s critique on my recent article on guns, firearms homicide, and mass shootings, I wrote a detailed and thorough reply refuting his methodological concerns and discussing directions for future research. In response, Kleck published a second rebuttal reiterating issues already addressed in both the original manuscript and the reply article, erroneously dismissing my work as a

How does membership in transnational multistakeholder institutions shape states' domestic governance? We complement traditional compliance-based approaches by developing a process model, focusing on the independent effects of processes associated with institutional membership, but separate from commitments and compliance themselves. These effects can be driven by iterative and participatory institutional

Scholars sometimes criticize durable regulatory systems for being costly, inefficient, ineffective, and inequitable. This article reassesses regulation, arguing that a mis-categorization of types of regulatory activity has led critics astray. More specifically, the article observes that regulation “hardened” by being built into infrastructure often ceases to be seen as regulation and its benefits are

Privatization of functions that were traditionally considered sovereign has reached new heights. International lawyers have responded mostly by seeking to limit some of the consequences of that phenomenon, by, for example, ensuring accountability of states for outsourcing. International law has sometimes appeared agnostic, however, about the very legality of privatization. This Article explores a more

On May 21, 2020, a Tribunal established under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) rendered an Award regarding the 2012 Enrica Lexie incident, which involved the death of two Indian fishermen at the hands of Italian Marines. The Award is lengthy and wide-ranging, finding that: (1) Italy and India had concurrent jurisdiction over the incident; (2) the Tribunal had

On January 28, 2021, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) dismissed all of the respondent's preliminary objections in Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives). The proceeding arose out of Mauritius's long-running effort to regain sovereignty over the Chagos Archipelago,

The Biden administration has undertaken to reset U.S. relations with Saudi Arabia, making early moves to break with the Trump administration's policy toward the country on several key fronts. White House officials have shifted the locus of diplomatic contact between the two countries from Saudi Crown Prince Mohammed bin Salman, who enjoyed a close relationship with the Trump administration, to his

In Federal Republic of Germany v. Philipp, the U.S. Supreme Court unanimously held that a country's taking of property from its own nationals does not fall within the Foreign Sovereign Immunities Act (FSIA) exception for “rights in property taken in violation of international law.” The case involved a claim that Nazi officials coerced a consortium of three art firms owned by Jewish residents of Germany

On February 1, 2021, the military in Burma overthrew the democratically elected government, declared a one-year state of emergency, and installed Senior General Min Aung Hlaing as the head of government. Since the coup, the military has cracked down on protestors, killing over 800 people and detaining many more. Numerous countries and international organizations, including the United States and the

On February 25, 2021, the United States conducted a strike targeting Iranian-backed militia group facilities in Syria. The strike, which came in response to a February 15, 2021 attack on U.S. interests in Iraq, marked the Biden administration's first known exercise of executive war powers. As domestic authority for the strike, President Joseph Biden, Jr. cited his authority under Article II of the

Abstract While in prison, incarcerated persons can be subjected to qualitatively different conditions of confinement ranging from minimum to maximum security settings. In this study, we use data on 17,542 incarcerated men to assess whether the relationship between visitation and recidivism varies across the types of settings (i.e. minimum, medium, close, and maximum custody units) in which individuals

Abstract Despite concerns and debates about the policy of using extended solitary confinement for managing individuals deemed to be too violent or disruptive to be controlled any other way—for the broader goal of system order and safety—empirical assessments of disparities in placements into this form of incarceration are limited. Prior studies typically have not compared extended solitary management

The International Monetary Fund (IMF) is infamous for its structural adjustment programs, requiring countries to undertake policy reforms in exchange for loans. Yet, not only do countries routinely fail to implement these reforms, but they also frequently return to the IMF to start the process anew. What explains this compelling case of transnational regulatory ineffectiveness? We argue that countries

We trace the pragmatic turn in regulatory governance from the level of the state and civil society to the coalface of the regulated organization. Since the 1980s, an array of new regulatory models has emerged. These models, while distinct, are unified in two related tendencies. First, they support the devolution of responsibility for standard setting, program design, and enforcement to the regulated

In recent years, regulation scholars and policymakers have increasingly turned their attention to the role of inter-governmental organizational design in effective governance. The existing literature on regulatory design has provided important insights into the advantages and disadvantages of alternative structural options. This article synthesizes and builds on that literature by describing a novel

This article makes four claims: First, tax systems at the national, regional and global level are regulatory systems. They can and should be studied as that. Second, taxation is an important extension to regulatory scholars’ empirical field of inquiry. It is a hard case to test prominent theories of new, softer modes of governance. Third, in the era of liberalization and globalization tax governance

This special issue examines the consequences of the ongoing power transition in the world economy for global regulatory regimes, especially the variation in rising powers' transition from rule-takers to rule-makers in global markets. This introductory article presents the analytical framework for better understanding those consequences, the Power Transition Theory of Global Economic Governance (PTT-GEG)

A key claim in bureaucratic reputation literature is that reputation has several dimensions. This presents agencies with a difficult choice concerning which dimension(s) they should emphasize in the management of their reputation. This paper analyzes how regulatory agencies manage their reputation through communicative responses to public judgments, based on a single-case study of the German financial

Developments in improved monitoring, asset management, and resource efficiencies led to the water industry promising a step-change in the design and operation of these facilities: the “blending” of traditional engineering equipment with digital technologies. These apparent benefits inevitably produce new challenges of regulating an emerging techno-political landscape. One of the regulations is Europe's

Although the idea of revolving doors evokes the dynamic image of moving in and out of public and private sector jobs, most scholars take a static view of the revolving door phenomenon, looking mainly at entrances, sometimes at exits, but almost never at both. This is a serious oversight given that normative concerns about revolving doors turn mainly on assumptions about how individuals become socialized

Abstract Public reporting programs such as the “See Something, Say Something” campaign are important counterterrorism measures. Yet public knowledge about terrorism is low, and Americans tend to associate terrorist activity with Muslims and Middle Easterners rather than with Whites. The consequence may be biases in public reporting that lead to discriminatory law enforcement. Using data from a national