CategoryDiscourse

Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.

Pandemic Possibilities: Rethinking Measures of Merit

Abstract The impact of the spread of the novel coronavirus in the United States beginning in winter 2020 has simultaneously laid bare vast chasms of inequality in education and created a crisis in which radical reforms have become possible almost overnight.  Schools, colleges and universities have dramatically changed how they admit, assess, and support their students; for example, the University...

Killing Due Process: Double Jeopardy, White Supremacy and Gang Prosecutions

Abstract The Fifth Amendment of the U.S. Constitution holds that no person shall be twice put in jeopardy of life or limb for the same offense.  Read plainly, a person cannot be tried or punished more than once for a single crime.  Yet in recent decades, as legislatures have expanded the prosecutorial state with weapons designed to punish more criminal defendants more harshly, the U.S. Supreme...

Introduction: Jailhouse Lawyering

Jailhouse lawyering has a long and radical tradition in the American prison system, and for decades, it has been recognized and protected by the U.S. Supreme Court.  In Johnson v. Avery,[1] the Court struck down Tennessee’s restrictions on jailhouse lawyering because “it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or...

Barriers to Jailhouse Lawyering

Abstract Jailhouse lawyers face unreasonable barriers to have their constitutional claims heard post-conviction.  Courts, without adequate regard for the physical limitations inherent behind bars, place procedures over justice. *** They say that a lawyer who represents himself has a fool for a client.  When you are poor and incarcerated, you often have no choice.  Your right to appointment of...

Broken Systems: Function by Design

Abstract This Essay traces the roots of the criminal legal and immigration systems and explains my personal journey through these systems, as well as what I have observed about how they operate today.  These systems are rooted in British and colonial laws, as well as Puritanism.  The remnants of these practices still affect our systems today and show us that they are not broken but working...

Applying for Compassionate Release as a Pro Se Litigant

Abstract This Essay describes the importance of exhaustion of administrative remedies to filing petitions for compassionate release as a pro se litigant.  The exhaustion requirement has traditionally functioned as a barrier to filing petitions in federal court.  It can often take months or over a year to fulfill the exhaustion requirement, which means that people seeking compassionate release are...

Insurgent Knowledge: Battling CDCR From Inside the System. The Story of the Essential Collaboration Between Jailhouse Lawyers and Appointed Counsel & Lessons for Resentencing Today

Abstract Jailhouse lawyering enables incarcerated persons throughout our nation to access the court system as pro se litigants, but self-represented litigants face detrimental barriers to obtaining justice.  A partnership between prisoners filing pro se and appointed attorneys is essential to bridge the gap between the vast resources of the State and those of prisoners, equipped with...

Bound by Law, Freed by Solidarity: Navigating California Prisons and Universities as a Jailhouse Lawyer

Abstract For jailhouse lawyers, winning a lawsuit seems like a victory, but there are multiple barriers to practicing law post-incarceration. Building on personal experiences, this Essay focuses on the deterrents to legal education in prison and post-incarceration for jailhouse lawyers. Through an examination of structural obstacles that keep formerly incarcerated people out of the legal...

Challenging Gladiator Fights in the CDCR

Abstract The California Department of Corrections and Rehabilitation (CDCR) has a long history of placing people in long-term isolation in response to suspected or confirmed gang membership or affiliation.  Despite being forced to stop the practice of  indefinite solitary confinement, CDCR continued other arguably unconstitutional practices in response to gang activity.  At Pleasant Valley State...

To Act Like a Democracy

Abstract Today, 5.2 million Americans are kept from voting because of felony disenfranchisement laws.  African Americans are disproportionately affected by these laws.  There has been a wave of reforms in recent years, restoring the right to vote to formerly disenfranchised persons.  This Essay discusses the reasons the franchise should be expanded, both because it leads to lower recidivism rates...

Jailhouse Lawyering From the Beginning

Abstract Jailhouse lawyering is a form of resistance against the prison industrial complex that seeks to silence and disappear prisoners.  This Essay describes the author’s acts of resistance, or growth as a jailhouse lawyer, from arrest to imprisonment using critical race theory and abolition theory.  While it tells one person’s stories, it is both shaped by those who taught him and the...

Making Bricks Without Straw: Legal Training for Female Jailhouse Lawyers in the Louisiana Penal System

Abstract Overt gender discrimination, and the combined failure of Louisiana’s Department of Public Safety and Corrections (DPSC) and Louisiana Correctional Institute for Women (LCIW) prison officials to provide offender counsel substitutes in prisons for women (OCS-W) the same quality legal education and training as provided for those incarcerated in prisons for men, are violations of the...

An Old Lawyer Learns New Tricks: A Memoir

Abstract In this reflection, James Bottomley shares his experience as a formerly barred attorney who is now incarcerated in a California state prison.  Bottomley has practiced as a jailhouse lawyer for himself and other incarcerated people in recent years but is now retired from the practice of law. Introduction When I was in jail, depressed that my next destination was the California state...