ARTICLES, ESSAYS, AND BOOK CHAPTERS
Contested Criminalization, 105 B.U. L. Rev __ (forthcoming 2025).
How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, criminalization occurs when the U.S. government pulls three levers—codification, cooperation, and creation. But such process is contested, developing contingently in geopolitical crises due to the divergent equities of Congress and three executive agencies: the Department of Justice, Department of State, and Department of Defense. Using a criminal law minimalism frame, this Article argues for a policy of cooperation to redress wrongs and advance justice for victims.
Criminal Law’s Hidden Consensus, 101 Wash. U. L. Rev. 1805 (2024)
American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law minimalism. It shows that, in fact, both schools share a hidden consensus: redressing wrongs. For the traditional camp, the wrong is harmful human conduct. For the critical camp, the wrong is the criminal legal system.
Furthermore, such consensus extends to deep, shared values in American society. It includes fair elections, public integrity, and law enforcement equity—counterintuitively, evident in polarized debates about prosecution of January 6th insurrectionists, Congressman George Santos and Senator Robert Menendez, and Officer Derek Chauvin. Thus, criminal law is not and should not be confined to the archetypes of the murderer or low-level drug offender—it also concerns itself with the election insurrectionist, corrupt politician, and deadly police officer. Finally and prescriptively, this Article will show that this hidden consensus is both a sword and shield for the existing system, guiding us toward a justification for criminal law minimalism. Highly recommended on Legal Theory Blog.
Essay, Teaching “Is This Case Rightly Decided?”, 108 Minn. L. Rev. Headnotes 125 (2024)
“Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay thus advocates that law professors should present students with a three-part framework: whether a case is rightly decided legally, morally, or sociologically.
Additionally, this Essay argues that disaggregating the question exposes deeper deficiencies in legal education. Many law professors do not provide students with serious grounding to engage in rigorous thinking about the relationship between law, morality, and justice, not to mention a deeper theory regarding law’s function in culture and society. Perhaps, such imprecision self-replicates into legal reasoning in legal scholarship and popular discourse.
How Do Prosecutors “Send a Message”?, 57 U.C. Davis L. Rev. 353 (2023)
The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.
Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment — and subsequent criminal process — will communicate to the general public a message of accountability regarding certain proscribed conduct. Using the context of socially prominent cases and foreign affairs prosecutions, this Article argues that prosecutors are comparatively ill-suited to consider such prosecutorial messaging because they lack relative capacity to appreciate societal response, or the divergent ways communities will make sense of criminal cases. This Article explains the mechanism of societal response as social meaning. It concludes by calling for democratization and decriminalization in criminal law.
Prosecution and Polarization, 50 Fordham Urb. L.J. 1117 (2023) (invited symposium contribution)
Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.
This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time of polarization? This contribution describes a prosecutionpolarization dynamic, wherein criminal cases may foster polarization domestically and internationally. In making this argument, this symposium contribution will survey theories of philosophy, psychology, and sociology that show the complexity of social meaning. It argues that this dynamic thus complicates scholarly notions that criminal justice should do reparative work. Domestically, some scholars argue that criminal justice should restore harmed victims or reconstruct torn community norms after a moral breach. Internationally, scholars contend that criminal tribunals should effect transitional justice, promoting accountability for atrocity crimes — genocide, crimes against humanity, and war crimes — in order to heal postconflict societies. And yet, often, indictment and prosecution have the opposite effect, fostering polarization and alienation.
Policing & The Problem of Physical Restraint, 64 B.C. L. Rev. 309 (2023)
The Fourth Amendment of the U.S. Constitution prohibits unreasonable “seizures” and thus renders unlawful police use of excessive force. On one hand, this definition is expansive. In the U.S. Supreme Court’s 2021 Term, in Torres v. Madrid, the Court clarified that a “seizure” includes any police application of physical force to the body with intent to restrain. Crucially, Chief Justice Roberts’ majority opinion emphasized that police may seize even when merely laying “the end of a finger” on a layperson’s body. And yet, the Supreme Court’s Fourth Amendment totality-of-the-circumstances reasonableness balancing test is notoriously imprecise—a “factbound morass,” in the famous words of Justice Scalia.
Such breadth and imprecision in the Court’s Fourth Amendment jurisprudence create a problem: it under-specifies forms of deleterious police conduct. In particular, while scholarship has explored police firearm use, less research has considered the role of police putting “hands on” a civilian and its potential to escalate toward lethal physical encounters. This is regrettable, given that such a “hands on” scenario occurs millions of times a year. At worst, it has escalated into high-profile police killings in cases like those of George Floyd, Eric Garner, Rayshard Brooks, and Michael Brown. Simply put, when police lay “hands on” laypeople, they may hurt or even kill them.
This Article calls this “the problem of physical restraint” and systematically considersthis problem in constitutional criminal procedure, law, and policy. As an initial matter, it shows how this problem is inevitable in both reformist and abolitionist agendas. It then shows how judges, policymakers, and police departments alike have overlooked such physical restraint due to legal under-specification, the political economy of policing, and a cultural-historical contingency that includes anti-Asian attitudes. It thus argues for robust intervention—judicial, legislative, and police training—to redress this oversight in pervasive police use of force.
“Cancel Culture” and Criminal Justice, 74 Hastings L.J. 79 (2022)
This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame through criminal justice reform and, ultimately, collective emphasis on reintegration after human wrongdoing.
Othering Across Borders, 70 Duke L.J. Online 161 (2021) (contribution to Reckoning & Reformation: Reflections and Legal Responses to Racial Subordination and Structural Marginalization symposium)
Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.
The Criminalization of Foreign Relations, 90 Fordham L. Rev. 737 (2021)
Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms—presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations. Featured on Just Security and Jotwell law blogs.
Core Criminal Procedure, 105 Minn. L. Rev. 251 (2020)
Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.
This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the exchange of electronic evidence but is related to two prior eras’ cross-sovereign criminal procedural articulation—the Warren Court incorporation of the Bill of Rights’ criminal procedural protections and engagement with international human rights instruments. Alternatively, courts today may use an ad hoc “outlier” approach, only excluding foreign evidence, convictions, or extradition requests in extreme circumstances that “shock the conscience.” This Article argues that the former approach is superior to the latter, and argues for a methodology—rooted in constitutional law, international human rights, and comparative legal functionalism—for evaluating foreign legal systems. To support this argument, this Article draws on political theory concerned with global justice. This Article concludes by considering how core criminal procedure informs U.S. engagement with international criminal tribunals and investigative mechanisms. Blind selected from national call for presentation at the 2019 Research Forum of the American Society of International Law and 2020 Michigan Law Junior Scholars Conference. Recommended on Legal Theory Blog.
Foreign Affairs Prosecutions, 94 N.Y.U. L. Rev. 340 (2019)
Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls for greater congressional engagement and judicial oversight to minimize such risks while still promoting accountability for cross-border, cyber, and international crime.
Marbury Moments, 54 Colum. J. Transnat’l L. 116 (2015)
Every court experiences a "Marbury moment," a pivotal decision in its early history where it asserts its authority or defines an axiomatic principle of law in a manner that is not textually transparent. By examining seminal cases from U.S. federal, regional, and international courts—including Marbury v. Madison, Costa v. ENEL (European Court of Justice), and Prosecutor v. Tadić (ICTY)—the Article identifies the defining characteristics of these moments and analyzes why some succeed in establishing legitimacy while others fail. Successful Marbury moments transcend initial controversy and are ultimately accepted by political and judicial actors within their jurisdictions. The Article concludes that Marbury moments serve as critical thresholds for judicial legitimacy, offering novel insights into the development of courts and the interplay between law and politics at the domestic, regional, and international levels. This comparative framework enhances understanding of how courts shape legal systems and consolidate authority across diverse contexts.
Geography and Justice: Why Prison Location Matters in U.S. and International Theories of Criminal Punishment, 47 Vand. J. Transnat’l L. 1267 (2013)
This article argues that prison location can materially advance core rationales of criminal punishment such as retribution, deterrence, and rehabilitation. It compares the U.S. and international procedures for designating the prison facility where a recently-convicted individual will serve his or her sentence.
The Emerging Enforcement Practice of the International Criminal Court, 45 Cornell J. Int’l L. 1 (2012) (with Hirad Abtahi)
This article focuses on the International Criminal Court’s (ICC) enforcement practice, with particular emphasis on the enforcement of sentences. It discusses the ICC Presidency’s approach to concluding bilateral enforcement agreements with states party to the Rome Statute. It also considers issues such as designation of States of enforcement; supervision of sentences; and the enforcement of fines, forfeitures, and reparation orders.
Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR, 32 Hum. Rts. Q. 253 (2010) (with Sital Kalantry and Jocelyn E. Getgen)
This article proposes a new methodology to determine whether countries have fulfilled their obligation to provide citizens with economic, social, and cultural rights. It focuses specifically on the right to education and employs progress indicators to measure States’ progressive realization of their human rights obligations.
A New Perspective on HIV/AIDS, Identity, and Human Rights, in Symbolic Transformation: The Mind in Movement through Culture and Society 284 (2010)
This book chapter proposes a novel, cross-cultural model of HIV/AIDS coping that can inform health-related human rights discourse. This new model draws from European work in social psychology and philosophy.
United States Administrative Protective Order Law and Sanctions: Accessing Information Through Agencies, 2 Global Trade & Customs J. 369 (2007) (with Gary Horlick)
This article compares U.S. and European Union international trade law in the antidumping context. Specifically, it focuses on the procedure by which U.S. and European agenciessue administrative orders that protect confidential business information.
Note, “Respectful Consideration” After Sanchez-Llamas v. Oregon: Why The Supreme Court Owes More to the International Court of Justice, 93 Cornell L. Rev. 243 (2007)
This Note discusses the role of foreign judgments in U.S. jurisprudence. Specifically, it argues that the Supreme Court should have given more consideration to the International Court of Justice’s interpretation of the Vienna Convention on Consular Relations.