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December 11, 2021

New Harvard Law Review article details "The Incoherence of Prison Law"

The new issue of the Harvard Law Review has this notable new article authored by Justin Driver and Emma Kaufman and titled "The Incoherence of Prison Law."  Here is its abstract:

In recent years, legal scholars have advanced powerful critiques of mass incarceration.  Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality.  Scholars have said much less about the law that governs penal institutions.  Yet prisons are filled with law, and prison doctrine is in a state of disarray.

This Article centers prison law in debates about the failures of American criminal justice.  Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure.  We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions.  To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation.  We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.

Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons.  This Article explains how outdated tropes have narrowed prisoners’ rights and promoted the country’s dependence on penal institutions. It links prison myths to the field’s central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment.  And it argues that courts must abandon that doctrine — and attend to the realities of prison — to develop a more coherent theory of prisoners’ constitutional rights.

December 11, 2021 at 01:14 PM | Permalink


It’s amazing how much ink is spilled trying to convince us that criminals aren’t dangerous and that innocent people suffer when criminals are coddled.


Posted by: Federalist | Dec 11, 2021 3:55:16 PM


Harvard Law never saw a hoodlum it didn't swoon for -- unless the defendant was a January 6 protester or at some point worked for Trump, in which case they deserve the max, no questions asked.

If Harvard Law ever said even a skeptical word about the Boston Marathon bomber, I missed it.

Welcome to legal academia. (My own alma mater, Stanford, is no better but manages to stay a bit more quiet).

Posted by: Bill Otis | Dec 12, 2021 2:47:05 PM

It’s amazing to me.

Posted by: Federalist | Dec 13, 2021 10:42:57 AM

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