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Articles 1 - 30 of 266
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Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq
Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq
barbara p billauer esq
Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
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) …
Inherent Racial Biases Woven Into America’S Criminal Justice Institutions: A Reexamination Of To Kill A Mockingbird, Joshua B. Lanphear
Inherent Racial Biases Woven Into America’S Criminal Justice Institutions: A Reexamination Of To Kill A Mockingbird, Joshua B. Lanphear
Joshua B. Lanphear
This is article considers the concept of inherent racial biases woven into America’s criminal justice institutions as reflected in Harper Lee’s novels To Kill a Mockingbird and Go Set A Watchman. Mockingbird—published in 1960, but set in the 1930s, in the fictitious racist-south of Maycomb, Alabama—portrays this concept through the trial of Tom Robinson, a sympathetic African American accused of raping the white Mayella Ewell. Key representatives of Maycomb’s institutions—Officer Heck Tate, Judge John Taylor, Mr. Gilmer, Atticus Finch, and Tom’s jury—perpetuate these inherent racial biases throughout Tom’s experience with the criminal justice system until he is ultimately killed under …
Rehabilitation Of Illicit Behaviours In The Post-Rtl Era: Disputes And Proposals, Zhenjie Zhou
Rehabilitation Of Illicit Behaviours In The Post-Rtl Era: Disputes And Proposals, Zhenjie Zhou
Zhenjie ZHOU
How to rehabilitate illicit behaviours that were subject to the re-education through labour system has been a topic of rigorous debate since the abolition of the system. Proposals brought forward so far can generally be categorised into a criminalisation approach and an administrative approach. This article asserts that the rehabilitation of these behaviours shall strictly observe principles of efficiency, transparency and fairness and proposes that the Legislature adopt the Law on Correction of Illicit Behaviour under pilot implementation to consign illicit behaviours that were subject to the re-education through labour system to a mixed decision-making procedure. This will constitute a …
Promoting Inclusion Through Exclusion: Higher Education's Assault On The First Amendment, Adam Lamparello
Promoting Inclusion Through Exclusion: Higher Education's Assault On The First Amendment, Adam Lamparello
Adam Lamparello
To obtain a meaningful educational experience and achieve the benefits of a diverse student body, students should confront beliefs they find abhorrent and discuss topics that bring discomfort. As it stands now, universities are transforming classrooms and campuses into sanctuaries for the over-sensitive and shelters for the easily-offended. In so doing, higher education is embracing a new, and bizarre, form of homogeneity that subtly coerces faculty members and students into restricting, not expressing, their views, and creating a climate that favors less, not more, expressive conduct. This approach undermines First Amendment values and further divorces higher education from the real …
Miranda 2.0, Tonja Jacobi
Miranda 2.0, Tonja Jacobi
Tonja Jacobi
Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this article analyzes the range of proposals and develops a realistic set of reforms directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they can be interrogated for; delivering …
Implementing The Lessons From Wrongful Convictions: An Empirical Analysis Of Eyewitness Identification Reform Strategies, Keith A. Findley
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 …
The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi
The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi
Tonja Jacobi
Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard—and the left-right division on the Court is considered so entrenched—that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that—that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways …
Dangerous Tongues: Storytelling In Congressional Testimony, Clare Keefe Coleman
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 …
Legal Thinking, The Adversarial Process And Exonerating Innocent Defendants: A Socio-Legal View Of The Wrongful Conviction Process., Gary J. Kowaluk
Legal Thinking, The Adversarial Process And Exonerating Innocent Defendants: A Socio-Legal View Of The Wrongful Conviction Process., Gary J. Kowaluk
Gary J Kowaluk
Little is as frustrating as advocating the release of an innocent defendant who has been wrongfully convicted. Surprisingly, most of the wrongfully convicted fail to overturn their cases through the courts, and rely on government officials and prosecutor’s to find other ways to release them from custody. Too often the wrongful conviction process leaves lawyers and judges arguing to legally support injustices in the face of a practical common sense indicating a defendant’s innocence. This paper is an attempt to understand the tendency of legal professionals to argue against remedying a wrongful conviction in favor of the continued social injustice …
Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway
Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway
Robert Hardaway
Prior to the Supreme Court’s 2004 decision in case of Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even where the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory as to the events described in her prior statement if: 1) the victim was unavailable, and 2) the statement bore ‘adequate indicia of reliability’ as indicated by falling within a ‘firmly rooted hearsay exception’, or satisfied ‘particularized guarantees of trustworthiness’. Ohio v. Roberts …
Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight
Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight
Jared J Hight
The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily …
Should Mere Direct Participation In Hostilities Be Treated As A War Crime?, Andrea Harrison
Should Mere Direct Participation In Hostilities Be Treated As A War Crime?, Andrea Harrison
Andrea Harrison
This article attempts to argue that acts that constitute mere direct participation in hostilities during armed conflict should not be treated as war crimes, but rather should be criminalized domestically, or addressed through amnesties when appropriate. In order to support this argument, the author looks at both International Humanitarian Law (IHL) and International Criminal Law (ICL) and their respective treatment of direct participation in hostilities. The author then examines offenses within the 2009 Military Commissions Act which would normally be deemed as mere participation in hostilities and compares these to offenses normally found under international law. Finally, the author explains …
Unheard Victims: Extending Victims’ Rights To The Civil Commitment Proceedings Of Sexually Violent Predators In Washington State, Mercedes M. Donchez
Unheard Victims: Extending Victims’ Rights To The Civil Commitment Proceedings Of Sexually Violent Predators In Washington State, Mercedes M. Donchez
Mercedes M Donchez
No abstract provided.
Twenty-First Century Regression: The Disparate Impact Of Hiv Transmission Laws On Gays, Siobhan E. Murillo
Twenty-First Century Regression: The Disparate Impact Of Hiv Transmission Laws On Gays, Siobhan E. Murillo
Siobhan E Murillo
No abstract provided.
Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. Maclean, James J. Berles
Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. Maclean, James J. Berles
Adam Lamparello
Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable.Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although prosecutorial misconduct …
Reconsidering Federal And State Obstacles To Human Trafficking Victim Status And Entitlements, Amanda J. Peters
Reconsidering Federal And State Obstacles To Human Trafficking Victim Status And Entitlements, Amanda J. Peters
Amanda J Peters
Federal and state anti-trafficking laws describe the victim in the process of criminalizing the act of human trafficking. Nearly half of all states adopt the federal definition of victim, which requires proof of forced, defrauded or coerced labor, whereas the other half narrows this definition thereby limiting the number of victims qualifying for state victims services. Using this definition, victims must prove their status before they can access victim entitlements. Even when victims prove their status, they may be denied traditional crime victim benefits like restitution and Crime Victim Compensation funds. In this way, their victim status may be rendered …
Law Enforcement And Technology: Requiring Technological Shields To Serve And Protect Citizen Rights, Ryan C. Pulley
Law Enforcement And Technology: Requiring Technological Shields To Serve And Protect Citizen Rights, Ryan C. Pulley
Ryan C Pulley
An often revisited topic is the tension between law enforcement and the citizens they aim to protect. One side of this discussion seeks to mitigate the tension by explaining the hard decisions that law enforcement officers must make to protect citizens and themselves, while the other emphasizes the corruption that exists within police departments. Recently, this discussion has begun a critical examination of the role of technology within police department to determine whether police officers are properly monitored and trained.
Both citizens and police forces alike should require that law enforcement officers utilize publicly available technologies that protect citizens’ rights. …
Betting Against The (Big) House: Bargaining Away Criminal Trial Rights, Raymond J. Mckoski
Betting Against The (Big) House: Bargaining Away Criminal Trial Rights, Raymond J. Mckoski
Raymond J. McKoski
No abstract provided.
Democracy Enhancement And The Sixth Amendment Right To Choose, Janet Moore
Democracy Enhancement And The Sixth Amendment Right To Choose, Janet Moore
Janet Moore
A democracy deficit undermines the legitimacy of criminal justice systems. People enmeshed in these systems are disproportionately poor people and people of color with little voice in creating or implementing the governing law. A stark example is the Sixth Amendment right to choose a lawyer. This understudied and undertheorized right is protected for criminal defendants who can afford to hire counsel. Yet according to Supreme Court dicta and rulings by other courts across the country, poor people “have no right to choose” their lawyers. This Article argues that the Sixth Amendment right to choose should apply to the overwhelming majority …
Deferred Corporate Prosecution As Corrupt Regime: The Case For Prison
Deferred Corporate Prosecution As Corrupt Regime: The Case For Prison
Lawrence E. Mitchell
Abstract: This paper looks at the growing phenomenon of deferred corporate criminal prosecutions from a new perspective. The literature accepts the practice and is largely concerned with the degree to which efficient and effective criminal deterrence is achieved through pretrial diversion. I examine the practice and conclude that it presents, from a structural perspective, a case of a corrupt law enforcement regime centered in the United States Department of Justice. The regime works in effective –if unintentional-- conspiracy with corporate officials to produce an inefficient enforcement regime that disregards democratic processes and threatens a loss of respect for the rule …
Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq
Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq
barbara p billauer esq
Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …
Calling Out Maryland V. King: Dna, Cell Phones, And The Fourth Amendment, Jennie Vee Silk
Calling Out Maryland V. King: Dna, Cell Phones, And The Fourth Amendment, Jennie Vee Silk
Jennie Vee Silk
In Maryland v. King, the Supreme Court narrowly upheld a Maryland statute that permits police to obtain a DNA sample from an arrestee without a search warrant. A year later, the Court drastically changed course and provided significantly more protection to an arrestee’s privacy. In a unanimous decision, the Court in Riley v. California held that police must obtain a search warrant before they can search the cell phone of an arrestee.
This article is the first to compare the Court’s conflicting decisions in Riley and King. Riley and King present the same issue: governmental invasion of privacy for …
Co-Occurring Substance Use Disorder And Mental Illness In Criminal Offenders, Jayme M. Reisler
Co-Occurring Substance Use Disorder And Mental Illness In Criminal Offenders, Jayme M. Reisler
Jayme M Reisler
The high rate of comorbid substance use disorder and other mental illness (“dual diagnosis”) poses an enormous obstacle to public policy and sentencing in criminal cases. It is estimated that almost half of all Federal, State, and jail inmates suffer from dual diagnosis – a significantly higher prevalence than in the general population. Yet such inmates lack access to proper and effective treatments for their conditions. Several etiological theories have been put forth to explain the occurrence of dual diagnosis in general. However, virtually no studies have explored possible etiological reasons for the higher prevalence of dual diagnosis specifically in …
Health, The Fruit Of The Earth’S Wealth: The Role Of Government And The Private Sector In Advancing Health, Kay Boulware-Miller
Health, The Fruit Of The Earth’S Wealth: The Role Of Government And The Private Sector In Advancing Health, Kay Boulware-Miller
Kay Boulware-Miller
Health, The Fruit of The Earth’s Wealth:
The Role of Government and the Private Sector in Advancing Health
Development is critical to the security, stability and survival of a nation. This paper will examine how each of government and the private sector assumes a critical role in furthering development and prosperity and in advancing health. First, the paper will posit that development, at its core, depends on wealth in its multiple and variable forms, and that every country, even the poorest, has the potential to be a healthy country. Wealth, properly developed and utilized from the earth’s hereditary riches, typically …
Legal Education As A Rule Of Law Strategy: Problems And Opportunities With U.S.-Based Programs, David Pimentel
Legal Education As A Rule Of Law Strategy: Problems And Opportunities With U.S.-Based Programs, David Pimentel
David Pimentel
Education can be powerful force in building the rule of law in developing countries and transitional states—especially in light of its power to influence culture and its ability to sustain meaningful change. Building a more effective system of legal education is a long term project, however, and a difficult sell given the way rule of law reform gets funded. Shorter term impacts are possible, however, through U.S.-based educational opportunities, which therefore present a compelling opportunity for rule of law promotion. Addressing short-term legal education deficiencies with U.S.-based education can contribute to a vision for the future of legal education in …
Popular Culture's Portrayal Of Attorney Decision-Making And It's Consequences- An Analysis Of An Attorney's Internal Ethical Conflict In Film, Tara M. Parente
Popular Culture's Portrayal Of Attorney Decision-Making And It's Consequences- An Analysis Of An Attorney's Internal Ethical Conflict In Film, Tara M. Parente
Tara M. Parente
This paper explores how popular culture portrays attorney decision-making and its consequences. This paper compares and contrasts two films in order to exemplify how attorneys are portrayed throughout film and how this carries over into real life. Attorneys are faced with ethical dilemmas at all times, especially throughout career advancement and the decisions made tend to affect every aspect of an attorney's life.
Do You Know The Fair Market Value Of Your Property? A Call To The Legislature To Revise Section 775.089, Florida Statutes, Governing Restitution, Adam Hapner
Adam Hapner
When a defendant’s criminal actions cause loss or damage to a victim’s property, section 775.089, Florida Statutes, requires that the court order the defendant to pay restitution to the victim. The purposes of section 775.089 are both to compensate the victim and to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system. Recently, more and more cases have been decided in which the State was unable to prove the amount of loss sustained by the victim due to precise measurements of value and demanding methods of proof. In such cases, the purposes of restitution were not achieved …
‘Point And Click’ Versus Byod: Student Engagement Technologies As An Ethical Imperative For Teaching Law, Elizabeth A. Kirley
‘Point And Click’ Versus Byod: Student Engagement Technologies As An Ethical Imperative For Teaching Law, Elizabeth A. Kirley
Elizabeth A Kirley
What conscientious law professor of first year, large format classes in torts, contracts, or criminal law has not pondered how to better engage students while easing their reluctance to speak out in class? While many students entering law schools are quite adept with student engagement technologies (SETs) from their undergraduate studies, some law faculty seem tied to the passive environment of lectures and PowerPoint presentations and hence reject SET methodologies as so much techno-wizardry. With the entry of web-based programs into the expanding field of SETs, and increasing empirical evidence that interactive learning improves grades, closes gender gaps, and helps …
Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe
Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe
Nicholas A Wolfe
International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.
Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …