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A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz

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When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler

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The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

The Marquis Beccaria: An Italian Penal Reformer’S Meteoric Rise In The British Isles In The Transatlantic Republic Of Letters, John Bessler

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This article traces the reception of Cesare Beccaria’s book, Dei delitti e delle pene (1764), in Britain and in colonial and early America. That book, first translated into English as An Essay on Crimes and Punishments (1767), catalyzed penal reform and the anti-gallows movement on both sides of the Atlantic. As the first Enlightenment text to make a comprehensive case against capital punishment, On Crimes and Punishments became a bestseller, appearing in multiple English-language editions and attracting much public attention. Widely read by an array of British and American lawmakers and other civic-minded penal reformers, On Crimes and Punishments was …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

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In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

After Suffrage: The Unfinished Business Of Feminist Legal Advocacy, Serena Mayeri

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This Essay considers post-suffrage women’s citizenship through the eyes of Pauli Murray, a key figure at the intersection of the twentieth-century movements for racial justice and feminism. Murray drew critical lessons from the woman suffrage movement and the Reconstruction-era disintegration of an abolitionist-feminist alliance to craft legal and constitutional strategies that continue to shape equality law and advocacy today. Murray placed African American women at the center of a vision of universal human rights that relied upon interracial and intergenerational alliances and anticipated what scholars later named intersectionality. As Murray foresaw, women of color formed a feminist vanguard in the …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman

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Norma Levy Shapiro, a trailblazing United States District Court Judge whose tenure on the Philadelphia federal bench spanned nearly 40 years, died July 22, 2016. This memoriam, written by two former law clerks, reflects fondly on Judge Shapiro’s judicial courage to follow her conscience even when doing so required making deeply unpopular decisions. To illustrate, this memoriam examines three of Judge Shapiro’s most memorable cases from her notable prisoner litigation docket.

First, in Harris v. Pernsley, Judge Shapiro’s principled but polarizing decisions in the Philadelphia prison overcrowding litigation elicited a now-familiar brand of snark from one (tremendous! but imperfectly …

Appraising The Progressive State, Herbert J. Hovenkamp

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Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest vulnerabilities …

The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler

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The influence of the Italian Enlightenment—the Illuminismo—on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents—George Washington, John Adams, Thomas Jefferson and James Madison—were inspired by Beccaria’s treatise and, in some cases, read …

An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani

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One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Essay offers crucial context by reminding readers …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

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Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Something Old, Something New: Reflections On The Sex Bureaucracy, Melissa Murray, Karen M. Tani

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This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected …

What Gideon Did, Sara Mayeux

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Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

Lobbying And The Petition Clause, Maggie Blackhawk

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Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Of Weevils And Witches: What Can We Learn From The Ghost Of Responsibility Past, Kimberly Kessler Ferzan

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No abstract provided.

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

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Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

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President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent …

Fifty Years Before Brady, Colin Starger

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In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s …

Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker

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For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

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This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association …

American Legal History Survey: Syllabus, Anders Walker

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This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

On The Road To Civil Gideon: Five Lessons From The Enactment Of A Right To Counsel For Indigent Homeowners In Federal Civil Forfeiture Proceedings, Louis S. Rulli

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No abstract provided.

New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices, Stephanos Bibas, Jennifer Blasser, Keith A. Findley, Ronald F. Wright, Jennifer E. Laurin, Cookie Ridolfi

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No abstract provided.

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

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At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

The Pace Of International Criminal Justice, Jean Galbraith

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This article examines how long international criminal cases take in practice. It considers the cases of all 305 individuals charged at six international and hybrid criminal tribunals (as of shortly before this article's publication). Contrary to the conventional wisdom, on average today’s international criminal cases do not take much longer than comparably complex domestic criminal cases, once the defendants are in custody. Nonetheless, international criminal cases may take too long to achieve the goal of helping to reconcile the affected communities – particularly where a community has abruptly transitioned from an abusive old regime to an entirely new one. Where …

The Ethical And Legal Basis For Student Practice In Clinical Education In The United States And Japan: A Comparative Analysis, Robert Rubinson

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Clinical legal education is currently undergoing a surge of interest and development in Japan. This raises numerous opportunities as well as difficulties. One of the most vexing issues concerns the scope of work a clinic student in Japan can do. This issue is particularly difficult given that in Japan there are currently no "student practice rules" so common in the United States.

The norms and rules governing what activities law students can perform in the United States might assist those interested in clinical education in Japan as they work through these issues. This article will attempt to do this. I …

Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts

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No abstract provided.

On The Moral Structure Of White-Collar Crime, Mitchell N. Berman

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No abstract provided.

The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter

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No abstract provided.