Criminal Law

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon. By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students. Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the para­digm crime and...

A WORLD OF DISTRUST

Timothy M. Mulvaney*

In District of Columbia v. Wesby, the Supreme Court determined that a prudent officer had probable cause to arrest attendees at a festive house party for criminal trespass without a warrant. While reactions from scholars of criminal law have begun to emerge, this Piece is the first to conceive of the decision through the lens of property theory. In this regard, the Piece offers two principal claims. First, on interpretive grounds, it contends that,...

FORESEEABLE POLICE SHOOTINGS

Katherine Macfarlane*

Introduction No matter how it begins, a police encounter may end in death, especially when the encounter involves people of color. There is no safe haven. Police-involved shootings happen everywhere—on the street, in a parked car, in a public park, or inside one’s own home. Police violence is a constant, its occurrence so predictable that […]

On any given day, local jails detain nearly half-a-million people who cannot afford bail. Opposition to this status quo, and to monetary conditions of pretrial release more broadly, has reached a fever pitch in recent years. Critics from across the political spectrum decry bail as a wellspring of mass incarceration and acknowledge its profoundly discriminatory effects, particularly within low-income communities of color. Academic studies link bail...

The American criminal justice system is a system of pleas. Few who know it well think it is working. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law—the two most studied bodies of law in the criminal justice system—neither...