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Volume 73, Issue 6


Article

Qualified and Absolute Immunity at
Common Law

by  Scott A. Keller

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 precedents, depends…

Article

Policing Under Disability Law

by  Jamelia N. Morgan

In recent years, there has been increased attention to the problem of police violence against disabled people. Disabled people are overrepresented in police killings and, in a number of cities, police use-of-force incidents. Further, though police violence dominates the discussion of policing, disabled people also disproportionately experience more ordinary forms of policing that can lead…

Article

Traffic Without the Police

by  Jordan Blair Woods

We are at a watershed moment in which growing national protest and public outcry over police injustice and brutality, especially against people of color, are animating new meanings of public safety and new proposals for structural police reforms. Traffic stops are the most frequent interaction between police and civilians today, and they are a persistent…

Note

Finality, Comity, and
Retroactivity in Criminal Procedure

Reimagining the Teague Doctrine After Edwards v. Vannoy
by  Jeffrey G. Ho

The Supreme Court’s habeas corpus retroactivity jurisprudence has never been a model of clarity or fairness. Ordinarily, if a case is on direct review, a court is bound to apply constitutional law as it currently stands, not the law as it stood at the time of trial, conviction, or sentencing. This rule derives from Griffith…

Note

Indirect Constraints on the
Office of Legal Counsel

Examining a Role for the Senate Judiciary Committee
by  William S. Janover

As arbiter of the constitutionality of executive actions, the Department of Justice Office of Legal Counsel (OLC) possesses vast authority over the operation of the federal government and is one of the primary vessels for the articulation of executive power. It therefore is not surprising that the OLC has found itself at the center of…

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Recent Online Essays

Race, School Policing, and Public Health

The central claim of this Essay is that school policing is an obvious public health issue. It sits at the nexus of two critical social determinants of health—education and racism—and requires targeted attention as such. Understanding school policing as a public health issue has significant potential benefits and practical implications, especially for the antiracist health-equity movement.

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The Mark of Policing

Race and Criminal Records

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records. Arrests alone—regardless of whether they result in convictions—create criminal records. This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.

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Law and Order as the Foundational
Paradox of the Trump Presidency

This Essay scrutinizes the feuding between the Trump White House and various federal law enforcement agencies, concurrent with criminal lawbreaking in the Trump Administration, in an effort to extend scholarly understanding of the relationship between law-and-order politics and popular regard for rule-of-law principles.

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To ‘Defund’ the Police

Much public debate circles around grassroots activists’ demand to “defund the police,” raised in public consciousness in the summer of 2020. Yet confusion about the demand is pervasive. This Essay adopts a literal interpretation of “defund” to clarify and distinguish four alternative, substantive policy positions that legal reforms related to police funding can validate. It argues that the policy debates between these positions exist on top of the ideological critique launched by grassroots activists, who use the term “defund the police” as a discursive tactic to make visible deeper transformations in government practices that normalize the structural marginalization of black people enforced through criminal law.

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Medical Civil Rights as a Site of Activism

A Reply to Critics

Many continue to diagnose civil rights problems and their solutions using medical frames. Are these policymakers, backed by activists, wrong to do so? The answer, according to legal scholarship that has explicitly considered the question, seems to be yes. While the legal scholarship has emphasized the harms of using medical discourse, it has not explicitly considered its benefits across social movements—and there are several. Rather than suggest that these activists have miscalculated, this Reply seeks to understand why activists and policymakers have deployed medical frames. Further, recognizing that medical discourse and the rights—and burdens—it produces are malleable, this Reply seeks to explore ways in which to further its social justice possibilities.

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