Criminal Law

With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. These are not challenges of a far-off future; they are already here. Judges will increasingly need to establish best practices to deal with a potential deluge of evidentiary issues. Our suggested approach illustrates how judges can protect the integrity of jury deliberations in a manner that is consistent with the current Federal Rules of Evidence and relevant case law.

This Article advances both legal and sociocultural explanations for the near absence of treason charges in the “war on terror” and the implications for addressing political violence. On the legal side, terrorism charges have replaced treason because they enable the government to do almost everything that it once sought to accomplish with treason charges: they impose extraordinary stigma, they reach speech and advocacy, and they trigger severe penalties. At the same time, terrorism charges face fewer limits than treason charges: they criminalize conduct far removed from actual plots, they require a lesser showing of intent, and they dispense with treason’s constitutionally imposed evidentiary restriction. This Article argues that reimagining national security requires vigilance regarding the shape-shifting nature of responses to political violence.

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. This Comment argues that a more complete evaluation of national security implications under the clear and convincing evidence standard will more accurately capture the full scope of proffered government interests and reduce the extreme deference given to the executive branch in its national security determinations.

This article focuses on two procedural mechanisms for strengthening the First Amendment within the criminal legal system: robust grand jury/indictment and unanimity requirements. These requirements help vindicate the First Amendment by testing the facts of a case against the constitutionalized elements of the offense.

Black male bodies have long been the subject of special attention from the state. This essay focuses on two government interventions in Black masculinity, dating from the 1960s, and their continuing consequences—including for the criminal justice system, and race and gender justice.

Allow me to begin with a scene from one of my favorite novels of the last twenty years. The novel is Hilary Mantel's 'Bring Up the Bodies,' the second in her award-winning trilogy of historical novels about Thomas Cromwell and King Henry VIII.