Digital Commons Network^™

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

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) …

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.

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 …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

A Decade Of Progress: Promising Models For Children In The Turkish Juvenile Justice System, Brenda Mckinney, Lauren Salins

Brenda A McKinney

In the past decade, Turkey has improved its approach to dealing with children in conflict with the law and moved the country closer to a system that ensures all children have the chance they deserve to strive for a better future. This paper focuses on two promising reforms that have been instituted in Turkey and that have the potential for improving juvenile justice systems in the rest of the world. They are: 1) open model incarceration and 2) diversion. While this paper also addresses challenges inherent in these models and discusses broader issues in the Turkish juvenile justice system that …

Notification And Risk Management For Victims Of Domestic Violence, Jaime K. Dahlstedt

Jaime K. Dahlstedt

Technological advances have made possible the real-time enforcement of temporary and contested protection orders issued on behalf of victims of domestic abuse, particularly through global positioning satellite (GPS) monitoring of individuals who have been found to have committed domestic violence offenses and against whom stay away orders have been entered. Notwithstanding this capability, however, courts rarely impose GPS monitoring requirements alongside the safety provisions routinely imposed in domestic abuse cases.

This Article examines and critiques this prevailing practice. This Article argues that the procedural, substantive and logistical objections to GPS monitoring do not sufficiently justify the systemic failure to impose …

The Word Commons And Foreign Laws, Thomas O. Main

Thomas O Main

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld

Adina Rosenfeld

The purpose of this paper is to compare the differences and similarities in the evidentiary rules for DNA in Italy and in the United States in the light of their two different legal traditions. This note will compare American and Italian rules of evidence and procedure for the admissibility of DNA in criminal trials and analyze the most relevant differences between the two systems. Based on this comparison, the note will argue that Amanda Knox would not have been convicted of murdering her roommate in American lower court because the DNA evidence would not have been admissible. In Italy, Knox …

Law, Social Movements, And The Political Economy Of Domestic Violence, Deborah M. Weissman

Deborah M. Weissman

This article uses the occasion of the 2012 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have acted to circumscribe the scope of VAWA and the dominant approach to domestic violence. It seeks to explore the relationship between domestic violence advocacy and feminist theory of the type that has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. It argues for the re-examination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In American Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging in the United States, one that has not received much attention from courts or in the scholarly comparative criminal-procedure literature: the extent to which internal personnel policies in American prosecutors’ offices create incentives to overcharge that do not exist in their counterparts overseas. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of American prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct in the United States, courts should disqualify prosecutors whose offices explicitly or …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In American Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging in the United States, one that has not received much attention from courts or in the scholarly comparative criminal-procedure literature: the extent to which internal personnel policies in American prosecutors’ offices create incentives to overcharge that do not exist in their counterparts overseas. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of American prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct in the United States, courts should disqualify prosecutors whose offices explicitly or …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging in the United States, one that has not received much attention from courts or in the scholarly comparative criminal-procedure literature: the extent to which internal personnel policies in American prosecutors’ offices create incentives to overcharge that do not exist in their counterparts overseas. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of American prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct in the United States, courts should disqualify prosecutors whose offices explicitly or …

To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court., Katherine I. Puzone

Katherine I. Puzone

In Juvenile Court, children often have more than one case pending, especially children living in group foster homes and those at alternative schools. In many jurisdictions, all of a child’s cases are assigned to the same judge. If the child is arrested at a later time, the new case is also assigned to the same judge. That means that if a child exercises her right to go to trial in each case, the same judge will hear every case. If they are set for trial on the same day, and they often are, the judge will hear each case in …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz

Andrew E. Taslitz

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

New Evidence On Appeal, Jeffrey C. Dobbins

Jeffrey C. Dobbins

Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.

There are, however, exceptions to this traditional principle. Whether presented through amicus briefs, social-science-laden “Brandeis Briefs,” petitions for discretionary review, or other mechanisms for supplementing the record, appellate courts often consider and rely upon new evidence. The literature regarding both the traditional rule and the exceptions is limited, and neither courts …

Fourth, Fifth And Sixth Amendment Considerations For Admissibility Of Defendants’ Admissions And Confessions, Nancy Haydt

Nancy Haydt

Over the past three terms, the U.S. Supreme Court has rendered opinions that have great impact on the admissibility of a criminal defendant's statement which constitutes an admission under FRE Rule 801(d)(2). This paper addresses recent High Court rulings implicating Fourth Amendment Search and Seizure rights, Fifth Amendment Rights to silence and to counsel, and Sixth Amendment Right to non-interference with trial counsel in the context of admissions and confessions, and discusses the profound effect these rulings have in Criminal Procedure.

Missouri's Ring Tone: Jury Sentencing Rights In Death Penalty Cases, Jacqueline M. Whipple

Jacqueline M. Whipple

This Law Summary concerns recent developments in criminal law and the death penalty. It includes the national and state-specific legal background behind criminal defendants' rights regarding jury sentencing, and the latest interpretation and application of the U.S. Supreme Court's holding in Ring v. Arizona by the Missouri Supreme Court.