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Cover page of The Poverty of Theory: Public Problems, Instrument Choice, and the Climate Emergency

The Poverty of Theory: Public Problems, Instrument Choice, and the Climate Emergency

(2021)

The instrument choice debate has been a fixture of environmental law for much of the last three decades.  While this debate has led to a much sharper focus on the relative merits of different regulatory tools in confronting environmental problems, it has also left the field unprepared to conceive and implement an adequate response to complex, multifaceted challenges such as climate change.  Using the case of emissions trading, this Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis.  The central claim is that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has led to a sharply diminished view of public engagement and government problem solving.  In advancing this claim, the Article makes three main contributions.  First, it provides a critical intellectual and institutional history of emissions trading that, for the first time, situates it within a broader history of instrument choice in law, economics, and political science.  Second, it uses this history to develop and demonstrate a more reflexive and critical theory of policy instruments and government problem solving, showing how the mainstream instrument choice debate has constrained our conceptions of the regulatory state and its capacity for climate action in jurisdictions around the world.  Third, and finally, it advances a series of normative claims that seek to rethink and reimagine a more responsive and expansive approach to government problem solving in the face of the looming climate emergency.

The Institutional Hearing Program: A Study of Prison-Based Immigration Courts in the United States

(2020)

This article presents the findings of the first research study of the Institutional Hearing Program (IHP), a prison-based immigration court system run by the U.S. Department of Justice. Although the IHP has existed for four decades, little is publicly known about the program’s origin, development, or significance. Based on original analysis of archival records, this study makes three central contributions. First, it traces the origin and growth of the IHP within federal, state, and municipal correctional facilities. Notably, although the IHP began in 1980 as a program to deport Cuban asylum seekers held in civil detention in an Atlanta prison, it now operates to deport noncitizens serving prison sentences in twenty-three federal prisons, nineteen state prison systems, and a few municipal jails. Second, this article uncovers the crucial role that prison-based immigration courts have played in shaping the design of carceral institutions around the priorities of an immigration system that primarily targets Latinos for deportation. Third, this article shows how immigration courts embedded in carceral spaces have served as influential, yet overlooked, incubators of changes to immigration law and practice that today apply to all immigration courts, not just the IHP. These findings have important implications for contemporary understandings of the relationship between immigration detention, racialized control of migration, and penal punishment.

Cover page of Questioning Bonhoeffer on Temptation

Questioning Bonhoeffer on Temptation

(2020)

This article engages critically and constructively with Dietrich Bonhoeffer’s biblical study ‘Temptation’ (1938). His study does not always do justice to the text of the New Testament or the theodicean and hamartiological issues pertaining to temptation. And his position that biblically temptation is not the testing of strength, but rather the loss of all strength and defenceless deliverance into Satan’s hands, is hard to defend. However, Bonhoeffer’s idea of Christ-reality undergirds his suggestion that all persons can find in Christ participation, help, and grace in resisting temptation. Bonhoeffer’s most important insight, which requires some unpacking, is that ‘my temptation is nothing other than the temptation of Jesus Christ in me.’

Cover page of The Carceral State at Work: Exclusion, Coercion, and Subordination, in Criminality at Work

The Carceral State at Work: Exclusion, Coercion, and Subordination, in Criminality at Work

(2020)

This chapter presents a very striking configuration of the relationship between the criminal law and the world of work: in the United States, custodial punishment for criminal offences, bearing especially heavily upon the population of colour, is so extensive as to identify that country as a ‘carceral state’; and it is one in which this enormous resort to imprisonment has seemingly contradictory repressive effects upon the workforce. On the one hand, it excludes many people from the labour market through pervasive discrimination against those with a criminal record. But on the other hand, it coerces many people into work; several institutions require people not currently imprisoned to work or face incarceration as a sanction. The contradiction may be resolved by considering the quality of work at issue, as exclusion from better jobs is complemented by coercion into worse ones: ‘subordinated inclusion’. This transformative effect of criminalization alters one’s basic understanding of how labour law regulates personal work relations.

Cover page of Is DNA Evidence Relevant?

Is DNA Evidence Relevant?

(2020)

In admitting DNA sample taken at the crime scene in 2010 to compare it with a DNA sample taken from the defendant in 2020 courts assume that the defendant’s DNA has not changed in the prior ten years. This article questions that assumption using scientific findings published in the journals Scientific American and Science News.

Cover page of Is DNA Evidence Relevant: The Sequel

Is DNA Evidence Relevant: The Sequel

(2020)

In admitting DNA sample taken at the crime scene in 2010 to compare it with a DNA sample taken from the defendant in 2020 courts assume that the defendant’s DNA has not changed in the prior ten years. This article questions that assumption using scientific findings published in the journals Scientific American and Science News.

Cover page of Mass Incarceration, Meet COVID-19

Mass Incarceration, Meet COVID-19

(2020)

With the global pandemic still unfolding, we are only beginning to make sense of the overall impact of COVID-19 on the people who live and work inside American prisons and jails, and of what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh conditions. In this Essay, I take stock of where things now stand. I also consider how we got to this point, and how penal policy would need to change if we are to prevent another round of needless suffering and death when the next pandemic hits. Part I explains why the incarcerated face an elevated risk of infection and potentially fatal complications from COVID-19. Part II describes the measures various corrections administrators took at the start of the pandemic to try to limit viral spread inside jails and prisons, and why, however well-intentioned, these measures were insufficient to bring the virus under control. Part III addresses the steps taken by public officials at all levels to reduce the number of people in custody and offers initial thoughts as to why, after a concerted push for releases on the part of many public actors in the first months of the pandemic, these efforts had already considerably slowed by the latter part of May 2020. (Here, the focus is primarily, though not exclusively, on the federal courts’ nonresponse to urgent petitions from incarcerated plaintiffs.) Part IV draws on the work of the UCLA Law COVID-19 Behind Bars Data Project. It explores what the data shows regarding infection rates and COVID deaths in custody, describes the limits of the available data, and explains why the impact on people in jails and prisons is likely even greater than the official numbers suggest. Part V zeroes in on the culture of secrecy that American corrections administrators have long been empowered to cultivate regarding what goes on behind bars. It argues that this culture has exacerbated the threat COVID poses to the incarcerated as well as to staff, that such secrecy is at odds with the imperatives of a public institution, and that we need to replace the reigning default posture of concealment with an ethos of transparency. This Essay concludes with a call for a broad normative reorientation toward assessing carceral policy through a public health lens.

Get To Work or Go To Jail: State Violence and the Racialized Production of Precarious Work

(2020)

Work requirements backed by threats of incarceration offer a fertile but neglected site for sociolegal inquiry. These “carceral work mandates” confound familiar accounts of both the neoliberal state’s production of precarious work through deregulation and the penal state’s production of racialized exclusion from labor markets. In two illustrative contexts—child support enforcement and criminal legal debt—demands for work emerge as efforts to increase and then seize earnings from indigent debtors; an ability to pay is defined to include an ability to work. In a third, demands for work are imposed directly through probation, parole, and other community supervision. In each context, the carceral state regulates work outside of prison. It defines appropriate labor conditions through concepts of voluntary unemployment, and it enables employers to discipline or retaliate against workers by triggering state violence. Additionally, mandated work may be removed from employment law protections when the carceral context dominates its sociolegal meaning. Finally, the resulting vulnerable workforces can be used to displace or discipline other workers not personally subject to carceral work mandates. Analogies to welfare work requirements, workplace immigration enforcement, and prison labor illustrate these points. Implications are considered for theorizing contemporary racial political economy.

Cover page of An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

(2019)

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a university’s affirmative-action plan that specifically targets Black women, the Essay considers what tier of scrutiny should apply. Because, for the most part, scholars take a race or gender approach to equal-protection law, they have not engaged that doctrinal puzzle and its implications for tiers-of-scrutiny writ large.