Faculty Scholars: Brenner Fissell
In the legal landscape, the term “criminal law” might bring to mind state-level crimes such as murder, assault, robbery, arson and rape. But Associate Professor of Law Brenner Fissell focuses his research on the criminal law of local governments: who makes the laws, how they are enforced, and the associated penalties. That’s because, for most people, local laws created by municipalities are much more likely to affect them day-to-day.
“Low-level offenses have a big impact on people’s lives,” Fissell says. “There are so many things you see there that you just don’t see at the state level.”
It is an interest that stems from his experiences growing up in a small town in upstate New York, where his dad was a local government official and Fissell would tag along to meetings. “I guess you could say I experienced it as a child, and now I study it from a criminal perspective. I never imagined this was the way my research would go, but there are so few legal scholars studying local criminal law.”
For example, Fissell recently looked at the role of police chiefs in advocating for the creation of new local criminal offenses, either by attending city council meetings themselves or sending in a police officer. His paper, “Police-made Law,” was one of just 12 selected for presentation at the Harvard/Stanford/Yale Junior Faculty Forum at Yale Law School in June 2023. “It was an honor to be able to go, but I was also able to get comments on the paper from Yale faculty,” he says. Fissell is now preparing his paper for publication in the Minnesota Law Review, a top tier law journal.
For another recent paper, he focused on the implications of the fact that, while most city councils are quite small compared to state legislatures, they can set local law and ordinances. “The size of a city council or town board is often about four people, but a state legislature is typically around 150,” Fissell says. “They have the power to create laws, but they do not look like normal legislatures.” His research was cited in a white paper that advocated for increasing the size of local legislatures.
“Everyone talks about mass incarceration, but there is also the phenomenon of mass misdemeanors,” Fissell notes. “Many offenses are being created by local governments. But these may be trapping people into a cycle of payments they can’t make or authorizing the police to stop people for minor incidents. In some cities, it is a crime to wear your pants below your waist. In one attempted arrest for this ‘sagging’ offense, a person was killed during the encounter. I hope my work can draw more attention to low-level offenses and low-level crimes.” Currently, he is researching criminal courts’ use of private collection agencies to pursue citizens who have outstanding criminal fines.
Fissell joined the ר Law faculty in 2022 because of what he calls its “strong research cluster in criminal law”—but one that did not include the expertise in local criminal law he could bring to the table. In addition, he has another unique area of expertise: military law. Before entering academia, he worked in the Department of Defense as appellate defense counsel for detainees at Guantanamo Bay who had been charged with war crimes. Fissell still devotes his time to representing members of the military in military courts, and he recently co-authored the casebook Military Justice: Cases and Materials (fourth edition, 2023). He is General Counsel and Director of theNational Institute for Military Justice, a society dedicated to fair administration of justice in the armed forces and improved public understanding of military justice.
Another factor in his decision to join the law school was its focus on legal scholarship. “From day one of my orientation, I could tell they were setting us up to be successful legal scholars. Everyone is working on something that is important to them,” he says. “For the topics I focus on, there is still a lot to be done in terms of research. And here I am part of a very interesting intellectual community where the group is of one mind in terms of what we care about and what we are focused on: Whatever you’re doing, do it with excellence.”
Learn more about Professor Fissell and his recent publications.