Trauma-Informed Policing: The Impact of Adult and Childhood Trauma on Law Enforcement Officers

For every six months that a police officer serves in the line of duty, he or she is likely to experience an average of three traumatic events. Such events may include fatal accidents, murders, suicides, and active threats to the life of the officer or someone else. Given the wealth of available data on how trauma reorganizes the nervous system to respond to everyday stimuli as threatening, this is an area that cries for critical exploration, especially in light of the frequency with which unarmed Black civilians are killed at the hands of officers who often make split-second decisions to respond to situations they perceive as dangerous with deadly force. For police officers of color, on-the-job trauma is often compounded by the lived experience of being a Black or brown person in America. Our previous research has delved into the traumatic fallout of the over-policing of Black youth and its long-term negative health impacts on Black people at a population level. As adults, officers of color then face both the persistent stress of living in a society that treats Black lives as disposable and the forceful, public rebukes of abusive police practices that target the very people who look like them. Such critiques, police officers report, add to the stress of an already demanding, hazard-filled profession. When the undeniable racial dimensions of aggressive policing of communities of color are publicly discussed in the wake of the murder of yet another unarmed Black mother, father, or child, commenters point to the red herring that racism in policing must not exist when such an incident involves a Black police officer who pulls the trigger. Itis our assertion that this is not the case. All police officers are subject to implicit racial bias as products of a culture where white supremacy is alive and well, and this is known and documented. What is not documented is our argument that the trauma that all police officers experience in the line of duty, as well as any preexisting childhood trauma that they bring with them, predisposes them at a biological level to overreact to perceived threats in ways that create increased risk for the unnecessary use of deadly force. Black police officers in particular are susceptible given the duality of their roles, although little is known about how this plays out in the context of threatening encounters. This Article seeks to explore that duality and lay a groundwork for development of further research. We hope to accomplish this, first, by discussing the science of trauma; second, by providing an overview of the history and evolution of policing, including recent innovations (for example, body cameras, community policing, and implicit bias training)intended to reduce the use of force and improve police-community relationships; third, by examining gaps in data and research that could assist in formulating evidence-based approaches for reducing the potential for violent encounters; and finally, by sharing narrative accounts of how traumatic experiences have shaped police officers in their interactions with individuals and communities of color

A Revised Perspective on Non-Debtor Releases

“Non-debtor releases” are bankruptcy orders that extinguish claims against a party other than a bankrupt debtor over the objection of the creditor. Also known as “third-party releases,” the legality of these orders is one of the most important and controversial issues in bankruptcy law specifically and business law generally. The split in the courts over the propriety of non-debtor releases stretches back thirty-five years. However, the United States Supreme Court is poised to resolve the split this term in the Purdue Pharma bankruptcy. In two prior articles published in 2006 and 2009, I argued that third-party releases are permissible under the Bankruptcy Code. But I no longer believe that to be the case. This article presents my revised perspective. The paper sets forth three basic arguments. First, bankruptcy courts grant non-debtor releases using the general equitable powers provided by sections 105(a) and 1123(b)(6) of the Code. But orders issued via those statutes that implement general bankruptcy policies rather than another specific section of the Code may not contravene substantive non-bankruptcy law. Third-party releases are policy orders that violate substantive non-bankruptcy law. Releases are thus beyond the scope of the two equitable powers statutes. Second, pro-release authorities contend that section 524(e) of the Code does not bar non-debtor releases. But the interpretive approach they employ to justify this claim results in section 523(a) of the Code not prohibiting the release of non-dischargeable claims. The latter conclusion is deeply implausible because it is universally rejected by lower federal courts and inconsistent with principles of statutory construction consistently endorsed by the Supreme Court. Therefore, via reductio ad absurdum, section 524(e) bans third-party releases. Third, even if non-debtor releases are statutorily permissible, the best interest of creditors test contained in section 1129(a)(7) of the Code mandates that the debtor’s plan of reorganization promise payment in full on all claims subject to the release. I defended this proposition in my first two articles. The current piece recaps and updates the analysis contained in my earlier work

Reclaiming Establishment: Identity and the ‘Religious Equality Problem’

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary\u27s religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson\u27s holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment Clause by prohibiting restrictions on the use of public funds for core religious purposes anytime government provides a generally available public benefit. They also undermine a unique architectural feature of the Religion Clauses which considers “religion”--or religious conduct, to be more exact--constitutionally special and commands a requisite degree of separation between church and state. This Article employs a conceptual framework that reimagines religious freedom\u27s key components as constitutionally distinguishable from one another. It argues that religious identity implicates an equality right that is legally distinct-- and severable--from religious belief and practice (e.g., free exercise) which trigger fundamental rights interests. An explicit acknowledgment of a “right to religious identity” that requires full substantive equality between religious and nonreligious entities only when they engage in secular conduct can bring much needed clarity, and stability, to an emerging religious equality jurisprudence that is increasingly at odds with settled constitutional principles. This right should be housed in the Establishment Clause because its equality principle prohibits government from discriminating between religious and secular identities (and among religious denominations), while its separation principle precludes it from directly benefiting religious exercise. Ultimately, a reconceptualization of religious freedom doctrine informed by the distinctive features of identity can help rectify the doctrinal imbalance between the Religion Clauses resulting from Free Exercise “bloat” and empower the Establishment Clause to reclaim its rightful place in the constitutional hierarchy

The Farcical Samaritan\u27s Dilemma

“[T]he hypothesis is that modern man has become incapable of making the choices that are required to prevent his exploitation by predators of his own species[.]” This article explores one of the foundational pillar theories of Law and Economics and specifically Public Choice Theory as espoused by Nobel Laureate James M. Buchanan: the “Samaritan’s Dilemma.” Using the Biblical parable of the Good Samaritan, Buchanan imagines a “dilemma” faced by the Good Samaritan when encountering a beaten and bloodied man left to die on the road to Jericho. Using Game Theory, Buchanan constructs a moral quandary that the man from Samaria must necessarily resolve within himself in deciding ultimately whether to lend aid to the beaten man left to die. Law and Economics, born in the twentieth century, theoretically establishes “efficiency” as its baseline. In evaluating the law from this efficiency perspective, neoclassical Law and Economics economists’ primary hypothesis is that individuals are rational and respond to incentives in a rational fashion. Law and Economics is built on the fundamental belief that markets, particularly free markets, are “more efficient than courts.” Undergirding this theorizing is the presumption that incentives are the primary motivators of individual behavior; how individuals respond to incentives provides a laser-like focus for Law and Economics. If human actors are “rational and respond to incentives” in a rational manner, then how rationality is defined becomes important for Law and Economics hypothesizing. Bottom line rationality for the Law and Economics economist is that individuals are motivated by self interest and that the rational reaction to an incentive will be to act in a self-interested, wealth-maximizing way. Put simply, a Law and Economics economist would consider a legal situation efficient where rights are allocated “to the party who is willing to pay the most for [them].” Conversely, when an incentive generates an action that results in a penalty, individuals will perform that action less to avoid the penalty. Law and Economics employs Game Theory to mathematically predict how individuals will react in given scenarios based on incentives provided and rationalities defined. In determining mathematically and logically actions that “players” should take to secure the best outcomes for themselves in a wide array of “games,” Game Theory considers itself the “science of strategy.” Perhaps the greatest overriding consideration when employing Game Theory is the interdependence of all choices employed by all players/participants. Or, stated another way, the ultimate outcome for each participant is dependent on the choices or strategies of all participants, requiring players to think about their own strategies while considering the strategies of all other players in coming to their own conclusions. Working through strategies to likely predicted outcomes, based on rational reaction to incentives, is the game or puzzle in Game Theory. With that brief introduction to Law and Economics and Game Theory, this article begins by reconstructing the Biblical parable of the Good Samaritan. Next, the article will provide a fundamental description of the Samaritan’s Dilemma, as espoused by Public Choice economist James Buchanan, explaining how Buchanan’s theory turns the Christian parable upon its head. Next, the article will describe the reasons that the Samaritan’s Dilemma is a farce – a theory best left conceptualized rather than instrumentalized. In describing the farcical Samaritan’s Dilemma, the article will focus on racial capitalism and its historical evolution as a means of understanding the hollow siren’s call of this concocted “Dilemma.” Finally, the article will introduce the reasons that the Samaritan’s Dilemma together with much of law and economics theorizing is intellectually bankrupt. Thereafter, the article will call for a deeper intellectual critique of Law and Economics than has been marshaled to date

Nobody\u27s Business: A Novel Theory of the Anonymous First Amendment

Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one\u27s ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one\u27s conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where there is sufficient justification, they may enjoy a privilege not to be. One such privilege--the privilege to participate in community thinking--is based in the First Amendment interest that persons have in developing their thinking with others without having to be held responsible for it. I argue that this privilege was not applicable eleven years ago to the challengers in Doe v. Reed and is, for somewhat similar reasons, not applicable to the challengers in the Supreme Court\u27s most recent anonymity case: Americans for Prosperity Foundation v. Bonta. I argue it was wrongly decided

Is Title VII a “Civility Code” Only for Union Activities?

Changes to labor law by the National Labor Relations Board are nothing new; changes in Presidential administrations often result in changes to the law, based on differences in philosophy by new majorities of the Board toward the proper interpretation of the National Labor Relations Act. But in2020, the Board made a fundamental change to long-standing interpretations of the Act’s protections for union and other concerted activities, not based on the Act itself, but based on what it said were the mandates of the anti-discrimination laws for employers to prevent harassment and discrimination. The Board contended that the former context-driven standards prohibited employers from complying with the anti-discrimination laws, but this article demonstrates that the anti-discrimination laws do not require that the Act’s protection be stripped from all racially and sexually offensive conduct that occurs in the context of union and concerted activities. This article also demonstrates that the new standard adopted by the Board, focusing on employer motivation in disciplining employees, fails to recognize all of the purposes of the Act it-self. This article proposes a return to the Board’s traditional context-driven standards, which allowed the Board to decline to protect concerted activities based on their egregiousness, and discusses potential changes to those standards, or the interpretation of those standards, to allow employers to comply both with the dictates of the Act and the requirements of the anti-discrimination law