Drug Courts, Racial Disparities, and Restorative Justice

I have a new paper on SSRN dealing with drug courts, focusing particularly on their (poor) prospects as a mechanism to address racial disparities in the prison population.  Here is the abstract:

Specialized drug treatment courts have become a popular alternative to more punitive approaches to the “war on drugs,” with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation’s prison population – disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a “do-no-harm” innovation. Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants. As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes. Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders. Although treatment may be part of such a program, the real centerpiece is the “community conferencing” process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives. Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.

The article is forthcoming in the Stanford Law & Policy Review.

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The Assault Upon the Citadel

I am no doubt dating myself, and that has been happening a lot lately, but Bill Prosser’s 1960 article in the Yale Law Journal probably has had the greatest influence on the way that I write and teach about the law [William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960)].  In that regard, it probably has had even more of an effect on me than any of my own articles.

In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach.  His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).

What initially attracted me to the Yale article was Prosser’s status as an icon.  I used his casebook and hornbook as a law student.  He was “Mr. Torts.”  But as I matured I found it offered so much more.  It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation.  I believe that nowhere in the law is this truer than in Torts.  It also made clear that legal scholarship does not have to be a stranger to humor.  The two can coexist. 

Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law.  In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.

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Influential Articles: Llewellyn’s Law-in-Action

In response to the Blog editor’s call for discussions of law review articles that have influenced our work as academics, I offer a few words on Karl Llewellyn’s “A Realistic Jurisprudence – The Next Step,” 30 Columbia Law Review 431 (1930).  Llewellyn’s words are often cited as the first important salvo of the legal realist movement, and the article has influenced my own teaching and writing in virtually every subject area I’ve tackled.

Llewellyn begins by asserting that “law” is one of our “loosest of suggestive symbols.”  “Law” ranges in his mind from such simple forms as statutes and appellate holdings to a range of socio-cultural control devices and institutions.  “I have no desire to exclude anything from matters legal,” Llewellyn says.  “I am not going to attempt a definition of “law.  Not anybody’s definition; much less my own.”

However, Llewellyn then goes on in the bulk of the article to emphasize a particular “focus” or “point of reference.” 

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