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Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar

Articles

I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.

Resentencing In The Shadow Of Johnson V. United States, Leah Litman

Articles

On June 26, 2015, the Supreme Court handed down a decision many years in the making—Johnson v. United States. Johnson held that the ‘‘residual clause’’ of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Although Johnson may have been overshadowed in the final days of a monumental Supreme Court term, the decision is a significant one that will have important consequences for the criminal justice system. ACCA’s residual clause imposed a severe 15-year mandatory minimum term of imprisonment, and many federal prisoners qualify for ACCA’s mandatory minimum. Johnson did away with ACCA’s residual clause such that defendants will no …

Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement, Amber Baylor

Faculty Scholarship

Defense attorneys are well acquainted with the ill-considered and extreme use of solitary confinement in local jails. Isolation is one of many problems clients face while locked up in jail awaiting trial. Other common conditions of pretrial confinement include lack of mental health treatment, inadequate medical care, violence from corrections staff, and lack of protection from the violence of others. "Owing time", a recently dismantled practice, is just one example of jails' frivolous use of extreme isolation practices. At times, youth in the juvenile facility at Rikers were placed in solitary so often that there was a waitlist at the …

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Big Data Blacklisting, Margaret Hu

Faculty Publications

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman

Articles

In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years …

Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss

Duke Journal of Constitutional Law & Public Policy Sidebar

In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …

Negotiating Federalism And The Structural Constitutionn: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

No abstract provided.

Wild West Campus: A Discussion On Concealed Weapons And The College Campus, Luke W. Mcminn

Senior Honors Theses

This thesis reviews the recent history of gun-related violence on college campuses in relation to gun control laws and argues whether college campuses should allow students and teachers with Carrying a Concealed Weapon permits to carry these weapons on campus, or if such a policy would merely exacerbate the issue at hand. The purpose of this thesis is to show that such a policy is effective, safe, and overall a benefit to the campus atmosphere and experience. Important points considered include the legal history of carrying concealed weapons, the current policies of universities concerning students carrying concealed weapons, the opinions …

Violently Possessed: Johnson As The Vehicle For Limiting Sentencing Enhancement Under The Armed Career Criminals Act, Jonathan Robe

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Johnson v. United States in which the Court will decide whether conviction for mere possession of a short-barreled shotgun qualifies as a "violent felony" that warrants sentence-enhancement under the Armed Career Criminals Act. The Author argues that he plain text of the statute and the Court's prior cases on the issue suggest tat convictions for "mere possession" do not satisfy the definition of "violent felony" and that the Court should overturn the Eighth Circuit's ruling upholding Johnson's sentence enhancement.

The Death Penalty: Should The Judge Or The Jury Decide Who Dies?, Valerie P. Hans, John H. Blume, Theodore Eisenberg, Amelia Courtney Hritz, Sheri L. Johnson, Caisa Elizabeth Royer, Martin T. Wells

Cornell Law Faculty Publications

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977– 2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, …

Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963-2013, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over a half century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases were …

Under The Prison Litigation Reform Act's So-Called Three Strikes Provision, When Does A Dismissal Count As A Strike: Coleman V. Tollefson (13-1333), Betsy Ginsberg

Faculty Articles

The Prison Litigation Reform Act of 1996 amended the federal in forma pauperis statute to include, among other provisions, what has become known as the “three strikes provision.” Under this provision, prisoners who have accumulated three strikes—three dismissals of cases that were frivolous, malicious, or failed to state a claim—are no longer permitted to proceed in forma pauperis unless they can show immediate danger of serious physical injury. This case asks the Court to determine whether a dismissal by the district court immediately counts as a strike or whether it does not count until any appeal of the dismissal has …

Jennings V. Stephens And Judicial Efficiency In Habeas Appeals, Eric O'Brien

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the Supreme Court case Jennings v. Stevens which deals with several areas of federal habeas corpus law and procedure. The Court will consider, inter alia, whether a habeas petitioner who succeeds in federal district court nevertheless needs to request a certificate of appealability to bring an alternate grounds for habeas relief at the appellate level. Further, the Court can resolve a major circuit split on whether a court considering an ineffective assistance of counsel claim should consider each instance of ineffective assistance as a single claim or as all parts of one claim. Eric O'Brien suggests …

From Fugitives To Ferguson: Repairing Historical And Structural Defects In Legally Sanctioned Use Of Deadly Force, José F. Anderson

All Faculty Scholarship

The lawful use of lethal force to subdue suspected wrongdoers has a long tradition in our nation. There is certainly nothing wrong with securing, incapacitating, or even killing violent persons who pose a serious threat to the lives of innocent individuals. One of the important roles of government is to protect people from harm and keep the peace. Recent events in Ferguson, Missouri, have highlighted the tension between the officers on the beat and citizens on the street. These tensions are not likely to subside unless there are major structural changes in the way the police do their job and …

Due Process And The Failure Of The Criminal Court, Steven Zeidman

Publications and Research

No abstract provided.

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Justice Scalia's Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell

Scholarly Articles

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology's encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia's opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, …

Outsourcing, Data Insourcing, And The Irrelevant Constitution, Kimberly L. Wehle

All Faculty Scholarship

No abstract provided.

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

Sexual Assaults Among University Students: Prevention, Support, And Justice, Rebecca B. Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Sexual assault is common among college-aged women (18 to 25 years), with 1 in 5 reporting having experienced these crimes during their college years. Acute and long-term consequences of sexual assault may include physical trauma, sexually transmitted infections, posttraumatic stress disorder, depression, and substance abuse. Survivors have the option of reporting assaults to the university or to the police, but the goals of these 2 systems—and women’s experiences with them—can be quite different. The criminal justice system’s principal aim is to adjudicate guilt, but the university has the broader purpose of fostering a safe learning environment.

This article explores how …

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v. …

“When Mercy Seasons Justice”: Interstate Recognition Of Ex-Offender Rights, Wayne A. Logan

Scholarly Publications

To the great relief of many, states are now rethinking their draconian criminal justice policies of the past several decades. In addition to shrinking prison and jail populations, reforms are underway to expand opportunities for relief from the collateral consequences of conviction, such as the loss of the right to vote, serve as a juror, or work in certain occupations, which can impede the ability of ex-offenders to successfully reintegrate into society. In coming years, as states seek to reduce their high recidivism rates, such relief efforts will likely continue to grow in number; as they do, we should expect …

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Elusive Equality: Reflections On Justice Field’S Opinions In Chae Chan Ping And Fong Yue Ting, Victor C. Romero

Journal Articles

For immigration scholars, Justice Field is perhaps best remembered for his majority opinion in Chae Chan Ping v. United States, the Supreme Court’s decision upholding Chinese exclusion, and credited for introducing the plenary power doctrine to immigration law. Yet, despite the opinion’s xenophobic rhetoric reflecting his personal views of the Chinese, Justice Field dissented in Fong Yue Ting v. United States, reasoning that, once they became lawful residents, the Chinese were entitled to be treated as equals under the law regardless of citizenship, a position supported by his earlier federal circuit court opinion in Ho Ah Kow v. …