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INTRODUCTION 1207 I. THE NEW PENOLOGY AND THE MANAGERIAL 1212 SHIFT IN COURTS A. The New Penology 1212 B. The Managerial Model of Criminal Justice: A Framework for Understanding Criminal [...], Scholars have increasingly recognized that criminal courts in the age of mass incarceration, particularly lower criminal courts, have effectively shifted from an adjudicatory system of justice to a managerial system of justice. Rather than adjudicating guilt or innocence, criminal courts are engaged in risk management and social control. However, literature on criminal courts has almost exclusively focused on judges, prosecutors, and defense attorneys, and their roles in the adjudication of criminal cases. This Article will focus instead on the managerial function of criminal courts by shining a spotlight on a less-scrutinized set of actors: criminal-court administrators. Through an in-depth case study of administrative actions in New York, this Article will explore how court administrators co-opt the tools of the court system--including bail, adjournments, and orders of protection--to tighten the net of social control around criminal defendants. Crucially, these administrative actions extend judges' ability to detain and surveil criminal defendants despite apparent conflicts with statutes, higher court decisions, and defendants' constitutional rights. At a time of massive reckoning with the criminal legal system, this paper will conclude that understanding the unique role of criminal court administrators in managerial criminal courts is necessary to navigate the best path forward for change.

INTRODUCTION 1302 I. A SHORT OVERVIEW OF SELF-INCRIMINATION SCHOLARSHIP 1306 A. The Privilege as a Means to Fulfill the Goals of the Legal System 1307 B. The Privilege as the [...], A debate has raged for decades, or even centuries by some measures, about the justification for the Fifth Amendment privilege against self-incrimination. Why have it? Some think it protects a deep-seated moral interest in silence, whereas others think it is, at most, a means of promoting an effective or restrained criminal system. Neither camp has made progress, and in the late 2000s, many came to believe it was futile to seek an overarching justification for the privilege. This paper seeks to unsettle that belief by showing that the debate about the privilege was never as stagnant as it seemed. More importantly, it seeks to push the debate forward with an upgraded argument. Specifically, I argue that the privilege against self-incrimination protects a distinct aspect of a person s mental privacy. This general idea has steadily developed to meet various objections over its lifetime, but its current elaboration is still problematic. It can be further improved by understanding the role of memory in developing and sustaining personhood and the value of shielding its operation from the ideology of the community, even when the latter is eminently justified. Persons have a moral interest (and a First Amendment interest) in developing a conception of themselves firsthand through unmediated cognitive contact with the circumstances of their lives. One urgent instance of this interest--what I call the "interest in firsthand thinking" or the "firsthand interest" for short--is the opportunity to reckon with one's (mis)deeds. Elaborating the legal consequences of this interest yields, in turn, what I refer to as the "Firsthand Theory" of the privilege against self-incrimination. This theory can address several objections to previous mental-privacy theories of the privilege. It also answers three enduring questions: Why should juries be prohibited from inferring a silent defendant's guilt from their silence? Why is the privilege unavailable in civil proceedings? When, if ever, will immunity permit compelling someone to incriminate themselves?

INTRODUCTION 295 I. SCHOLARSHIP ON TRIAL PENALTIES: SEVERITY, PROSECUTORIAL POWER, AND POLICY RECOMMENDATIONS 298 A. Severity of Trial Penalties 299 B. Increase in Prosecutorial Power 301 C. Policy Recommendations 302 [...], Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining's dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing. The over criminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions. Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread. Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers--the most prevalent defendants in federal court. This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs. The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible. This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case. It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.

Professor Fontaine has very kindly asked me to comment upon his paper. It is an ambitious paper, one that raises many interesting questions. I will confine myself to commenting on [...]

I loved Professor Nolan's paper, and not just because he and I are among the few people to suggest that the emperor of therapeutic jurisprudence has no clothes. (1) What [...]

The paper by Professor Donald Dripps is in the finest tradition of legal scholarship. Scholars and courts have been arguing for more than a century about whether and how to [...]

INTRODUCTION 1350 I. LEGAL BACKGROUND 1352 A. Making the Stop: The Constitutionality of Pretexts 1352 B. After the Stop: Selective Prosecution Claims, Consent Searches, and Use of Force 1354 II. [...], Pretextual stops are a common and constitutionally-sanctioned policing practice, deployed when an officer ostensibly detains a motorist for a traffic violation but actually intends to pursue other investigatory agendas. Because pretexts enable law enforcement to conduct investigatory stops without probable cause, they can conceal improper motives for acting--including, most significantly, racial biases. In an effort to address this problem, prosecutors across the country are declining to pursue charges arising from minor traffic infractions which frequently furnish pretexts for stops. This Note details the issues presented by pretextual stops, explores the benefits and concerns associated with prosecutorial reform, and, using author-conducted interviews, closely examines prosecutorial changes in Ramsey County, Minnesota.

INTRODUCTION 1158 I. VARIETIES OF TOPLASH 1163 A. Removal from Office 1164 B. Narrowing Jurisdiction 1168 1. Limiting Substantive Jurisdiction 1168 2. Limiting Geographic Jurisdiction 1172 C. Narrowing Discretion 1174 [...], The election of progressive prosecutors across the country holds tremendous promise for criminal justice reform and the fight against mass incarceration. But legal scholarship has not reckoned with a primary threat to the success of those prosecutors: resistance from state-level officials, especially conservative governors and state legislatures. This resistance from above, which I call "toplash," is often more important than electoral backlash. From Florida to Texas to Missouri, understanding whether progressive prosecutors will succeed or fail in their reform efforts requires understanding toplash. This Article provides legal scholarship's first full account of toplash. It shows that toplash is considerably broader than preemption, in that toplash includes not only efforts to narrow prosecutors' discretion but also efforts to narrow their geographic jurisdiction or remove them from office entirely. It then explains the origins of toplash. Toplash emerges from the failure of electoral backlash (since many progressive prosecutors are popular among their constituents), the rise of intense geographic polarization (with red-state governments taking on blue-city prosecutors), and the distinctive politics of crime. The Article then examines what is wrong with toplash, arguing that toplash is objectionable on several grounds: as a denial of local democratic autonomy, as an attempt by majoritywhite state governments to impose their will on majority-minority (often majority-Black) cities, and as an unjust response by state governments whose disinvestments in cities often contribute to crime in the first instance. I close by examining the tools--both legal and political--that progressive prosecutors can use to resist toplash.

INTRODUCTION 1264 I. THE TERRITORIAL PRINCIPLE 1267 A. POWER TO ARREST AT COMMON LAW 1267 B. THE EXTRADITION CLAUSE 1270 II. STATE AGREEMENTS TO PERMIT OUT-OF-STATE OFFICIALS TO OPERATE ACROSS [...], Perhaps surprisingly, the Supreme Court has never resolved whether an unauthorized arrest across state lines violates the Fourth Amendment as an unreasonable seizure. In light of the recent spike in legislation purporting to make conduct originating in other states illegal, delimiting the power to make extraterritorial arrests has become more urgent--law-enforcement agents in State A may be tempted to follow suspects into State B (or, indeed, to track down suspects who have never set foot in State A) to ensure enforcement of State A's criminal laws. Before and after the Framing, individuals subject to such extraterritorial seizures successfully sued the arresting law-enforcement officials based on state-law tort principles. Indeed, Article IV's Extradition Clause presupposes that lawenforcement officials cannot cross state lines to effect an arrest. Given the Bill of Rights' incorporation and state law-enforcement officers' general immunity from such tort suits, the question whether such unauthorized arrests violate the Fourth Amendment has become more pressing. Today, the issue arises predominantly in determining whether to exclude evidence uncovered incident to such arrests. The lower courts are badly split. Many hold that violation of a fresh-pursuit agreement, despite the violation of territorial sovereignty, does not make an arrest unreasonable within the meaning of the Fourth Amendment. Many courts also hold that, even if the arrest was illegal, law-enforcement authorities retain the same power to arrest in other states as would any private citizen witnessing a felony. We take issue with both positions. First, we argue, largely based on history, that unauthorized extraterritorial arrests should be considered per se unreasonable under the Fourth Amendment. Moreover, even if the history were not so clear, the arrested individual's interests in privacy and dignity outweigh the government's interests because the governmental interests are in fact divided--the law-enforcement interests of one state are negated by the interests in territorial sovereignty of the other. Second, although law-enforcement authorities should be able to make citizen arrests in other states when on vacation, to permit them to rely on citizen arrest authority in pursuit of a suspect across state lines would thwart the very premise underlying the territorial principle, which confines lawenforcement authorities to investigate crime and make arrests only within their own jurisdictions. Finally, given the need to deter extraterritorial arrests and the fact that such cross-border incursions are deterrable, courts should apply the exclusionary rule, subject to limited exceptions, to exclude from trial any evidence uncovered during the unlawful arrest.

I. INTRODUCTION 1115 II. CRIMINAL INVESTIGATIONS UNDER I.R.C. 1115 [section][section] 7201, 7202, 7203, 7206, AND 7212(A) A. Legal Landscape of IRS Investigations 1115 1. Responsibility for Investigation and Prosecution 1115 [...]

I. INTRODUCTION 914 II. SECTION 1503 (THE OMNIBUS CLAUSE) AND SIMILAR STATUTES 915 A. Scope of [section] 1503 916 B. Elements of a [section] 1503 Offense 916 1. Pending Federal [...]

I. INTRODUCTION 945 A. Section 1621: False Testimony Generally 946 B. Section 1622: Subornation of Perjury 947 C. Section 1623: False Testimony to Court or Grand Jury 948 II. ELEMENTS [...]

I. INTRODUCTION 714 II. ACCOUNTING PROVISIONS 717 A. Elements of the Accounting Provisions 718 1. Covered Parties 718 2. Record-Keeping 718 3. Internal Controls 719 B. Control Person Liability 721 [...]

I. INTRODUCTION 893 II. OVERVIEW OF THE STATUTE 895 A. Section 1956 895 1. Transaction Money Laundering 895 2. Transportation (or International) Money Laundering... 896 3. Sting Money Laundering ("Sting [...]

I. INTRODUCTION 395 II. ELEMENTS OF THE OFFENSE 397 A. Agreement to Concerted Action 397 B. Restraint of Trade 398 1. Per Se Unreasonable 400 2. Rule of Reason 403 [...]

I. INTRODUCTION 442 II. COMPUTER INTRUSION AND FRAUD 444 A. Botnets 445 B. Spyware 445 C. Ransomware 446 D. Viruses 447 E. Worms 447 F. Trojan Horses 447 G. Logic [...]

I. INTRODUCTION 526 II. WORKER SAFETY 526 A. The Occupational Safety and Health Act 527 1. Employer's Willful Violation of 527 a Standard Causing Death a. Elements of the Offense [...]

I. INTRODUCTION 836 II. TRADE SECRET THEFT 837 A. Economic Espionage Act of 1996 837 1. Definition of Trade Secret 838 2. Elements of the Criminal Offenses 839 a. Economic [...]

INTRODUCTION 36 I. DPAS, NPAS, AND CALCULATING PENALTIES: SOME BACKGROUND 39 II. EMPIRICAL ANALYSIS OF PENALTY DISCOUNTS IN FCPA CORPORATE PRETRIAL DIVERSION AGREEMENTS 46 III. IMPLICATIONS AND CONCLUSIONS 52 INTRODUCTION [...], There is a longstanding debate over the propriety of corporate deferred and non-prosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation. That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase. Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing. Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties. Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability. This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants. These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

Introduction 1517 I. The Case for Prosecution 1520 II. The Case for Public Defense 1525 III. The Obstacles and Challenges for Progressive Prosecution and Zealous Indigent Defense 1527 A. Obstacles [...], This Article addresses a question asked by many law students concerned about our flawed criminal legal system: should they become a prosecutor in an office run by a progressive prosecutor, or a public defender in an office devoted to zealous, client-centered (or holistic) defense? The Article starts with an anecdote about Philadelphia District Attorney Larry Krasner's road show to recruit law students and young lawyers, and then proceeds as follows: First, this Article makes the case for progressive prosecution; then, it makes the case for zealous indigent defense; then, it identifies the obstacles and challenges for both kinds of lawyers and offers a brief comment on prosecutor and defender "personalities;" finally, it offers thoughts on who, in the end, has more power to make meaningful change.

Introduction 1382 I. The Mistaken Beliefs Underlying the Narratives 1386 A. Myth #1: Harsh Criminal Penalties, Like Those for Homicide, Deter Illicit Drug Use and Drug Distribution--Including Distribution of Illicitly-Manufactured [...], An increasing number of criminal legal system actors, including some prosecutors, have acknowledged that the so-called "overdose crisis" is a public health problem. Despite this narrative shift, some prosecutors are responding to local overdoses by charging persons who distribute drugs that are linked to a subsequent death with criminal killing. These charges are brought either through the use of existing, non-specific statutes or so-called drug-induced homicide ("DIH") statutes, which explicitly criminalize the act of delivering a substance subsequently associated with a death. In this Article, we outline three salient themes that have emerged from early literature and from preliminary surveys exploring prosecutors' perceptions of and justifications for filing DIH charges. In doing so, we provide empirical evidence to suggest that these narratives are based on myths about drugs and the people who use and distribute them--myths that are not supported, and are sometimes contradicted by, scientific research. This Article aims to dispel some of these pervasive yet unsound narratives contributing to the prosecutorial belief that DIH prosecutions have the capacity to improve public health and reduce overdose. In doing so, this Article also provides prosecutors with an alternative framework for more accurately conceptualizing how prosecutorial action against people who use and distribute drugs impacts the health and well-being of the entire community--including persons who use drugs. Finally, this Article also elucidates how well-intentioned prosecutors may be unwittingly causing more fatal overdoses by discouraging calls to 911 during an overdose emergency and by disrupting local drug markets in ways that directly increase the risk of overdose.

Introduction 1496 I. Los Angeles: A Case Study in "Progressive Prosecution" 1503 A. Gascon's Reform Agenda 1506 B. Changing the Culture of a District Attorney's Office 1510 II. A New [...], The progressive prosecutor movement offers many critical proposals to reform our criminal justice system. However, it has not been able to fully accomplish its goals in many jurisdictions because the newly elected prosecutors have faced pushback, not just from hardline opponents to their reforms, but from the deputy prosecutors in their own offices. For there to be real change in prosecutors' offices, progressive prosecutors must win the hearts and minds of their own staff. Progressive prosecution is a cultural change that requires working with, not against, the rank and file of prosecution offices. To accomplish this, it is not enough that new directives are issued. Prosecutors must engage all their stakeholders, especially the line prosecutors who will be expected to implement the new directives. This requires educating the line prosecutors about the reasons reforms are needed, listening to their concerns, being open to modifying new policies depending on the operations and laws of the jurisdiction, and finding common ground with groups that have not yet joined the progressive prosecutors' movement. To meet this challenge, prosecutors would be well advised to learn how the business world successfully navigates onboarding new leadership teams.

I. INTRODUCTION 1246 II. ELEMENTS OF THE OFFENSE 1247 A. Material Misrepresentations and Omissions 1248 1. Use of Interstate Commerce or the Mails 1248 2. Misstatements and Omissions 1249 3. [...]

I. INTRODUCTION 1323 II. CRIMINAL INVESTIGATIONS UNDER I.R.C. [section][section] 7201, 7202, 7203, 7206, AND 7212(A) 1323 A. Legal Landscape of IRS Investigations 1323 1. Responsibility for Investigation and Prosecution 1323 [...]

I. Introduction 1127 A. Section 1621: False Testimony Generally 1128 B. Section 1622: Subornation of Perjury 1129 C. Section 1623: False Testimony to Court or Grand Jury 1130 II. Elements [...]

I. INTRODUCTION 1094 II. SECTION 1503 (THE OMNIBUS CLAUSE) AND SIMILAR STATUTES 1095 A. Scope of [section] 1503 1096 B. Elements of a [section] 1503 Offense 1096 1. Pending Federal [...]

I. INTRODUCTION 1071 II. OVERVIEW OF THE STATUTE 1073 A. Section 1956 1073 1. Transaction Money Laundering 1073 2. Transportation (or International) Money Laundering 1074 3. Sting Money Laundering (Sting [...]

I. INTRODUCTION 1004 II. TRADE SECRET THEFT 1005 A. Economic Espionage Act of 1996 1005 1. Definition of Trade Secret 1006 2. Elements of the Criminal Offenses 1007 a. Economic [...]

I. INTRODUCTION 876 II. ACCOUNTING PROVISIONS 879 A. Elements of the Accounting Provisions 880 1. Covered Parties 880 2. Record-Keeping 881 3. Internal Controls 882 B. Control Person Liability 883 [...]

I. INTRODUCTION 717 A. Criminal Versus Civil Penalties 719 B. Criminal Enforcement 719 C. Interaction with Other Criminal Violations 720 II. GENERAL ISSUES 721 A. Overview of the Elements of [...]

INTRODUCTION 482 I. DEFINING CORRUPTION 484 A. The Supreme Court's Shrinking Definition 484 B. A General Understanding of Corruption 488 II. THE SCHEME TO EXPLOIT COLLEGE ADMISSIONS 492 A. The [...], The United States has two problems with corruption. Most evidently, the United States experiences corruption, and suffers its harms. More problematically, the United States' legal system struggles with the concept of corruption, and how to define it. Over the last fifteen years, the Supreme Court has aggressively narrowed its definition, acutely undercutting the ability of the legal system to control corruption. Legal scholars, and the public, have emphatically responded with calls for reconsideration and redefinition. The furious reactions to the Court's definitional sleight of hand, however, seem to die out after those calls are made, and legal scholarship lies adrift, seeking a useful approach to defining corruption. Intriguingly, an approach lies directly in the vision of the legal system. For the past quarter century, while the Supreme Court has enfeebled the law, activity among anticorruption organizations has surged. Those practitioners have coalesced around a shared understanding of corruption. This Article explores that definition by applying it to the recent scheme involving college admissions. To do so, the Article first must explore the missions of universities and the admissions process that supports those missions, and second must closely examine the scheme itself. When applied to this scheme, the general understanding effectively distinguishes corrupt acts from other acts and provides other insights. Corruption is a real-world phenomenon, and the general understanding shared by real-world practitioners constitutes a valuable tool, which merits consideration and use by the legal system.

I. INTRODUCTION 670 II. WORKER SAFETY 671 A. The Occupational Safety and Health Act 671 1. Employer's Willful Violation of a Standard Causing Death 672 a. Elements of the Offense [...]

I. INTRODUCTION 580 II. COMPUTER INTRUSION AND FRAUD 583 A. Botnets 584 B. Spyware 585 C. Ransomware 586 D. Viruses 587 E. Worms 587 F. Trojan Horses 587 G. Logic [...]

I. Introduction 531 II. Elements of the Offense 533 A. Agreement to Concerted Action 533 B. Restraint of Trade 534 1. Per Se Unreasonable 536 2. Rule of Reason 539 [...]

INTRODUCTION 349 I. THE INTELLECTUAL ORIGINS OF THE RIGHT TO SOCIAL EXPUNGEMENT-- THE RTBF 356 A. The RTBF--General 356 B. The RTBF in the U.S. Context 360 1. The Dominant [...], In recent years, policy makers advancing criminal legal reform have engaged in attempts to correct years of harsh and expansive use of criminal laws. Two main parallel trends dominate these attempts. One is forward-looking--the decriminalization of many activities currently punishable by the criminal legal system. The second is backward-looking, and related--expungement and vacatur reforms that aim to allow individuals to start fresh. While these latter efforts are intended to erase the criminal stain from official criminal records, the non-official domain gained less traction, leading to an absurd reality in which news stories about individuals' criminal histories remain accessible in the virtual world, practically forever. Tragically, these online news stories are often more practically detrimental to reintegration than the official criminal records. As such, they frustrate the criminal legal system s efforts to correct past mistakes. The literature on criminal legal reform thus far has given less attention to this crucial problem. This Article contributes to narrowing this scholarly gap. To do so, it introduces "the right to social expungement"--which recognizes the right of individuals arrested for or convicted of offenses now vacated, expunged, legalized, or decriminalized to have stories about their past interaction with the criminal legal system removed from media websites. Utilizing the case study of individuals arrested for or convicted of selling sex, this Article provides two theoretical justifications for recognizing this right: (1) the socio-legal paradigm of cultural shifts and its effects on existing law and policy, and (2) criminal law's amelioration doctrine, which offers a path to retroactively apply lenient criminal justice policies. The piece further argues that, counter to conventional wisdom, the right to social expungement can sit comfortably within a plausible interpretation of the right to privacy and freedom of the press. The Article concludes by offering preliminary guidance for establishing the right to social expungement.

INTRODUCTION 232 I. INSTANCES OF CRIMINAL PROCEDURE ASYMMETRIES 235 A. Trespass and Open Fields 235 B. False Statements and Police Lies 243 C. Ignorance of the Law and Mistake of [...], Concerns about police abuse and over criminalization are on the forefront of public conscientiousness. In spite of the Black Lives Matter movement and calls for police reform, law enforcement officials enjoy a variety of criminal procedure loopholes and double standards, which the United States Supreme Court has ratified through its creation of the open fields, mistake of law, and third party doctrines, as well as its acceptance of deceptive police practices. This Article analyzes the asymmetries between permissible civilian conduct and permissible police conduct to make a broader, systemic critique of the double standards and loopholes that pervade constitutional criminal procedure. It further seeks to provide a starting place for reconciling an individual's rights under the Fourth, Fifth, and Sixth Amendments with permissive police practices. As it now stands, police may openly trespass on fenced, private fields with posted warning signs, lie or fabricate evidence during an investigation to extract a confession, excuse a wrongful stop or arrest by claiming a mistake of law, and obtain warrantless access to information shared with entrusted businesses, though such information is ordinarily protected against public disclosure. By allowing these practices, the Court, at the expense of privacy and other rights, endorses acts for which members of the public would be criminally sanctioned. The perpetuation of these double standards, loopholes, and asymmetries can trigger serious unintended consequences. Cognitive dissonance can result when individuals discover that their expectations of the law conflict with its actual operation and when their expectations of privacy and other rights are consequently upended. To remedy the cognitive dissonance, a person might retreat into isolation. This retreat can negatively impact social capital, or the benefit that accrues from networking and social interactions. Moreover, as individuals discover the double standards and loopholes afforded to police, they may perceive the criminal justice system as unfair and lose trust in the laws, police, and, ultimately, the government's legitimacy--which could itself culminate in disobedience of laws. Therefore, this Article proposes an elegant, easily administrable rule: the Court should cease to privilege these asymmetries over individual rights and recalibrate doctrinal police policies to conform to societal norms and public expectations. The courts, governmental bodies, and law enforcement entities should eliminate these asymmetries to secure the public's trust and confidence.

INTRODUCTION "[N]o reasonable person would conclude that the statements were truly statements of fact." (1) In stunning candor, Sidney Powell conceded that her accusations against US Dominion, Inc. ("Dominion")--that the [...]

INTRODUCTION "I literally could not put my phone down. Whether I got shot or not, this needed to be documented." (1) Those words were spoken by the bystander who used [...]

INTRODUCTION 1484 I. VOLUNTEER PROSECUTORS IN CONTEXT 1491 A. Non-Traditional Prosecutor Pay Models 1493 1. Contract Prosecutors 1493 2. Part-Time Prosecutors 1494 B. Typology of Volunteer Prosecutors 1494 1. Entry-Level [...], As support has grown to reduce the footprint of criminal law by defunding the police, volunteer prosecution--a practice that has garnered little attention--continues to expand criminal law's footprint. Volunteer prosecutors come in many different forms, but their core similarity is that they all prosecute crime without getting paid. Some are entry-level lawyers seeking to gain a foothold in the legal profession, while others are retirees seeking to contribute to their communities. Others work full-time paid jobs in civil practice but volunteer to prosecute some criminal cases too. Many volunteers bring only misdemeanors or petty offenses--prosecutions that disproportionately burden people of color. The racial disparity of those prosecutions prompted a large Minnesota law firm to cancel its volunteer prosecutor program after police killed George Floyd. This Article provides the first scholarly treatment of volunteer prosecutors. It aims to understand the nature and motivations of this practice by conducting a content analysis of news stories and interviewing law school career services employees. It then examines those findings through the theoretical lens of the sociology of volunteer work. It relies on these sources to build a taxonomy of the various forms of volunteer prosecution and catalog some places where it occurs. Volunteer prosecution may offer substantial benefits, particularly to recent law school graduates trying to gain paid work as prosecutors in an office that does not have an opening. But volunteer prosecution raises systemic normative concerns. This Article focuses on one particularly salient concern: volunteer prosecution allows the government to cast a wider net in criminal law than the one that the legislature afforded. That net disproportionately ensnares people of color. Stepping back a bit, the most meaningful constraint on prosecutors' authority is their limited budgets, but volunteer prosecution allows prosecutors' offices to evade budget constraints and bring low-level misdemeanor or petty offense cases even when elected officials have not appropriated sufficient funds to bring those cases. Low-level prosecutions disproportionately target poor people of color. Compounding the net-widening problem, volunteer prosecution may skew toward individuals with intergenerational wealth--a group that will be less able to identify with and therefore likely will treat more harshly the largely poor defendants who disproportionately populate our criminal legal systems.

INTRODUCTION 1542 I. CRIMINAL JUSTICE SECRECY 1547 A. Investigation 1547 B. Grand Juries 1551 C. Plea-Bargaining 1555 D. "Discovery" 1557 E. Conviction Evidence 1560 F. Jury Deliberations 1561 G. Punishment [...], The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation's Founder's steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today's criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation of these concerns create a real constitutional problem.

INTRODUCTION 1666 I. WHAT PHOENIX IS (AND IS NOT) DOING FOR THE UNHOUSED 1669 II. FRAGMENTED RESPONSIBILITY 1672 A. Paying for the Unhoused 1672 B. A Failure of Collective Action [...], This Essay explores the ways in which the division of funding and responsibility for various social services across local, state, and federal governments disincentivizes sound approaches to societal problems--particularly when it comes to addressing the needs of the unhoused. Whereas local governments primarily are responsible for funding and directing the police, most other services, including housing, healthcare, and substance abuse treatment, are funded and overseen by other government units. This Essay demonstrates how this fragmentation of authority has contributed to society's overreliance on policing and criminal punishment in addressing the problem of homelessness. First, because fiscal responsibility for various government services is distributed across the various levels of government, no one government unit may have the financial incentive to depart from the more punitive status quo. Second, fragmentation creates a familiar sort of collective action problem: Unless all of the municipalities in a particular region step up to do their part, the few who do may find themselves carrying the burden for the region as a whole. Finally, even if all of the actors at various levels of government were equally invested in pursuing a more humane and cost-effective approach, fragmentation makes it more difficult to mount a coordinated response to problems that invariably spill over across jurisdictions and policy domains. This Essay concludes by pointing out that fragmentation may, if anything, be of still greater concern when it comes to the broader project of reimagining public safety and redefining the role of the police.

INTRODUCTION 233 I. MORRISON AND ITS "TRANSACTION" TEST FOR DETERMINING THE SCOPE OF SECTION 10(B) ACTIONS 239 A. Morrison 239 B. The Court's Transactional Test for Domesticity--Transactions Involving "The Purchase [...], The real engine of the Supreme Court's blockbuster decision in Morrison v. National Australia Bank Ltd. was not the Court's much-discussed invigorated presumption against extraterritoriality. On the ground, what matters to investors, companies, and judges is the oft-ignored second Morrison ruling: the creation of a "focus" analysis for separating actionable "domestic" section 10(b) claims from foreclosed "extraterritorial" suits. Applying this analysis, the Court determined that the site of the transaction at issue determines whether a section 10(b) case can proceed: section 10(b) only covers "transactions in securities listed on [U.S.] domestic exchanges" or "domestic transactions in other securities." Morrison's second ruling has attracted relatively little scholarly attention. This Article's first contribution, then, is to start a conversation regarding the bona fides of the Court's focus analysis and its resultant transactions test for securities claims. It plumbs the voluminous case law in which courts have struggled to apply the transactions test in transnational securities fraud cases. This review demonstrates that the Morrison transactions test is not capable of meeting the Court's aims in Morrison: it yields arbitrary results, and in many cases, it is incapable of stable and predictable application. Thus, it does not further congressional objectives in securities regulation, nor does it efficiently allocate cases to the jurisdiction with the greatest sovereign interest. This Article's second contribution is to proffer a novel framing and analysis to show that Congress displaced the Morrison test in government-initiated cases under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Just days after Morrison was decided, Congress passed Dodd-Frank, in which it amended the jurisdictional authorization for SEC-and DOJ-initiated section 10 (b) cases to incorporate a conduct-and-effects test that courts of appeals had employed for decades but which the Morrison Court spurned in favor of its flawed transactions test. The Morrison Court had ruled that its transactions test limited the scope of section 10(b) itself and was not a question of subject-matter jurisdiction, as courts of appeals had long held. Because Congress chose to amend the jurisdiction section rather than section 10(b), the overwhelming majority of commentators believe that Congress s effort to replace the transactions test with the traditional conduct-and-effects test in government-initiated cases might be ineffective. The question of whether the SEC and DO J can fill the regulatory gap left by Morrison's limitations on private enforcement is critically important in light of the volume of transnational securities trading and concomitant fraud. This Article demonstrates that the scholarly consensus is wrong. It proposes a more appropriate framing--that is, a focus on the amended jurisdictional statute rather than Morrison. This framing reveals that Congress wished to endorse the lower courts' approach prior to Morrison both by reinstating the conduct-and-effects test for extraterritoriality in government-initiated cases and by codifying the treatment of extraterritoriality as a jurisdictional question. The posited analysis, unlike much of what is currently being aired in courtrooms and law reviews, disentangles this knotty question in a way that is consistent with relevant principles of statutory construction. This Article concludes that Congress successfully replaced the transactions test with a jurisdictional conduct-and-effects test in government-initiated section 10(b) actions.

INTRODUCTION 394 I. INFORMATION ASYMMETRIES IN PLEA BARGAINING 395 II. INSUFFICIENCIES OF CURRENT LITERATURE AND POLICIES 400 A. Open-File Discovery Literature 400 B. Criminal Discovery Shortcomings 401 III. THE NEED [...], Criminal defense attorneys often engage in plea negotiations on behalf of their clients without knowledge of material, exculpatory information that the prosecution may possess, placing the defense at an unfair disadvantage. The recent proliferation of electronically-stored information ("ESI") is further exacerbating this informational imbalance. Without proactively accounting for ESI in criminal discovery, the informational gulf existing between the prosecution and the defense during plea negotiations will continue to foster uninformed legal representation, inconsistent results, and an enduring lack of public confidence in the criminal justice system. Although scholars have promoted open-file criminal discovery as a cure to narrow this informational gap, neither the literature nor recently enacted open-file criminal discovery have sufficiently considered the importance of digitizing open-file criminal discovery to fix the imbalance. This Article argues for the nationwide implementation of digitized open-file criminal discovery schemes as a means of correcting the current pre-plea informational asymmetry, leading to more reliable results and improved defense lawyering. Digitizing open-file criminal discovery will produce a digital ecosystem of accountability benefitting both defendants and prosecutors alike.

INTRODUCTION 439 I. THE BACKGROUND OF THE HYDE AMENDMENT 441 II. JUDICIAL INTERPRETATION OF "POSITION OF THE UNITED STATES" IN THE HYDE AMENDMENT 444 A. Courts that Do Not Interpret [...]

INTRODUCTION 2 I. DEFINING AND CATEGORIZING PROXY CRIMES 9 A. Two Existing Conceptions of "Proxy Crimes" 10 1. Proxy Crimes as Over-Inclusive Offenses 11 2. Proxy Crimes as a Means [...], "Proxy crimes" is a phrase loosely used to refer to conduct that is punished only as a means to target other harmful conduct. Many criminal law scholars find the criminalization of this type of conduct unjustifiable from a retributivist perspective, while others note that proxy criminalization can contribute to mass incarceration and over criminalization. Given the importance of these problems, a systematic analysis of proxy crimes, currently absent in the criminal law literature, is needed. In this article, we provide a comprehensive analysis of proxy crimes by (i) surveying the existing literature and identifying gaps in prior analyses, (ii) proposing a simple yet useful definition of proxy crimes, (iii) identifying three specific categories of proxy crimes, and (iv) conducting an economic analysis of proxy criminalization which allows us to identify conditions under which proxy criminalization is socially (un)desirable. Finally, in light of our analysis, we present and discuss a specific affirmative defense that can be made available to defendants charged with a proxy crime. We explain how legislators can better balance the social benefits and detriments of proxy criminalization through that affirmative defense.