Digital Commons Network^™

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Katrice Bridges Copeland

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Orin Kerr

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan

Luke Milligan

The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …

Comparative Cannabis: Approaches To Marijuana Agriculture Regulation In The United States And Canada, Ryan Stoa

Ryan B. Stoa

The United States and Canada may be friends and allies, but the two countries' approaches to the regulation of marijuana agriculture have not evolved in tandem. On the contrary, their respective paths toward legalization and regulation of marijuana agriculture are remarkably divergent. In the United States, where marijuana remains a federally prohibited and tightly-controlled substance, legalization and regulation have remained the province of state legislatures and their administrative agencies for decades. In Canada, a succession of court cases paving the way toward medicinal marijuana use has prompted the federal government to develop a national framework committed to "legalize, regulate, and …

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Anthony O'Rourke

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

Sex Industry Advocates Aim To Decriminalize Prostitution In New Hampshire, Kelly Roy-Williams, Lisa Thompson, Donna M. Hughes Dr.

Donna M. Hughes

Submission To The Queensland Taskforce On Organised Crime Legislation (Inquiry Area 5), Terry Goldsworthy

Terry Goldsworthy

In response to a request from the Executive Director of the Commission the following submissions provide Dr. Goldsworthy’s responses as they relate to each term of reference:

1. If provisions in the 2013 legislation are effectively facilitating the successful detection, investigation, prevention and deterrence of organised crime

2. If provisions in the 2013 legislation are effectively facilitating the successful prosecution of individuals

3. If the 2013 legislation strikes an appropriate balance between ensuring the safety, welfare and good order of the community and protecting individual civil liberties, including in relation to the anti‐association provisions in the 2013 legislation

4. How …

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner

Brendan M. Conner

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

A New Law To "Save" Youth From Survival Sex Will Force Them Into State Custody, Brendan M. Conner Esq.

Brendan M. Conner

It’s not novel that minors in the US can, in very rare cases, be sentenced to reform programs or secure confinement for actions that wouldn’t be illegal if adults did them. But the system used to punish youth for the likes of skipping school or drinking has never been used systematically to address cases where minors engage in survival sex – meaning, youths who exchange sex for money, shelter, food, drugs or other needs.

That is about to change, even though treating juveniles charged with prostitution like truants will increase arrests and extend court-involvement and institutionalization of victims.

On 29 …

Implementing The Lessons From Wrongful Convictions: An Empirical Analysis Of Eyewitness Identification Reform Strategies, Keith A. Findley

Keith A Findley

Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reforms.

Using eyewitness misidentification—one of the leading contributors to wrongful convictions and the most thoroughly …

Dangerous Tongues: Storytelling In Congressional Testimony, Clare Keefe Coleman

Clare Keefe Coleman

The important and dangerous use of storytelling in making legislation has been largely ignored by legal academics. Although notable scholars, including Justice Scalia and Cass Sunstein, have written extensively about the use of legislative history in statutory interpretation, and much has been written about the use of storytelling in advocacy, the important role that stories play in making legislation has been overlooked by the legal academy, outside of a few articles relating to criminal statutes. The Congressional Record on a recent farm bill is full of stories told by special interests that draw on metaphors, archetypes, and myths. Snow White’s …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Fortney

Susan S. Fortney

This article takes a different approach in considering the problem of prenatal drug abuse. After briefly discussing government intervention and constitutional issues, this article will consider the concept of duty and correlative rights. This discussion of duty and correlative rights suggests that the government can take measures to curb prenatal drug use without recognizing fetal rights. The article concludes with a discussion of the utility of criminal legislation as compared to public health legislation that treats drug addiction as a disease requiring treatment. As formulated, the proposal for public health legislation is not based on any concept of fetal rights. …

Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin

Kim D. Chanbonpin

No abstract provided.

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

Pennsylvanians' Constitutional Right To Juries Free Of Any Suspicion Of Partiality In Danger?, Thomas J. Foley Iii

Thomas J Foley III

Jury selection is the critical beginning, and all too often the untimely end, to any “fair” civil or criminal jury trial. Some Pennsylvania trial judges give short shrift to litigants’ challenges both for cause and peremptory, and improperly empanel potential jurors despite possible biases and prejudices revealed during voir dire. These trial judges jeopardize the Pennsylvania constitutional right to a fair trial before an ostensibly unbiased jury, one free of any suspicion of partiality. They not only endanger the rights of the litigants themselves, but threaten continued acceptance of the laws by litigants and by the public at large. Three …

Womenpowerconnect Newsletter, Professor Vibhuti Patel

Professor Vibhuti Patel

Dear Friends, It is once again time to reflect on WomenPowerConnect’s work and achievements over the last three months. WPC has continued to develop and expand its advocacy agenda and targeted concern for women on child marriage supported by Ford Foundation, Women’s land rights and property supported by Oxfam India, and Enhancing access of the Mobile population to HIV & AIDS services’ information & support in collaboration with Care India. The projects in hand are progressing well along with other activities. Many achievements have been made in advocacy and networking while many new highs have to be touched in the …

Continuous Contamination: How Traditional Criminal Restitution Principles And Section 2259 Undermine Cleaning Up The Toxic Waste Of Child Pornography, Mary Margaret Giannini

Mary Margaret Giannini

Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case

Jennifer L. Case

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Re-Examining The Zero-Tolerance Approach To Deporting Aggravated Felons: Restoring Discretionary Waivers And Developing New Tools, Bill Hing

Bill Ong Hing

In this essay, I argue that immigration judges should regain discretion over deportation cases involving lawful permanent resident immigrants who have committed aggravated felonies — discretion that was eliminated in 1996. Congress’s failure to address the issue of reinstating immigration court discretion is a missed opportunity to act consistently with changing political attitudes toward law enforcement and notions of proportionality. Addressing these issues would invite a conversation about the effect of criminal deportations on the prospective deportee, who may in fact be well on the road to rehabilitation. The effect on the community also would become relevant, as we focus …

Lawmaking By Public Welfare Professionals, Gerald Jogerst, Jeanette Daly, Jeffrey Dawson, Gretchen Schmuch, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested parties.

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

Arizona's Slayer Statute: The Killer Of Testator Intent, Adam D. Hansen

Adam D Hansen

In 2012, the Arizona legislature amended its slayer statute to close loopholes that had emerged during years of slayer case litigation. However, in so doing, the Arizona legislature neglected to consider the adverse impact the amendment would have on the trending social consideration of euthanasia. This Article sheds light on the unintended legal consequences of Arizona’s current slayer statute, considering the trending social issue of euthanasia. Part Two briefly presents terms, highlights two legal theories that were used in early American jurisprudence, and gives a short history of the codification of modern slayer statutes. Part Three gives an overview of …

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

"Unnatural Deaths," Criminal Sanctions, And Medical Quality Improvement In Japan, Robert B. Leflar

Robert B Leflar

A worldwide awakening to the high incidence of preventable harm resulting from medical care, combined with pressure on hospitals and physicians from liability litigation, has turned international attention to the need for better structures to resolve medical disputes in a way that promotes medical safety and honesty toward patients. The civil justice system in the United States, in particular, is criticized as inefficient, arbitrary, and sometimes punitive. It is charged with undermining sound medical care by encouraging wasteful expenditures through defensive medicine; by driving information about medical mistakes underground where it escapes analysis, undercutting quality improvement efforts; and by forcing …