Digital Commons Network^™

Forced Justice: The Kosovo Specialist Chambers, Sara L. Ochs, Kirbi Walters

Duke Journal of Comparative & International Law

The Kosovo Specialist Chambers (KSC), the court created to adjudicate war crimes and crimes against humanity committed in Kosovo at the turn of the century, is the world’s newest hybrid tribunal. The KSC is classified as a hybrid tribunal because it ostensibly blends aspects of international and domestic law and resources. Upon examination, however, the KSC departs in critical ways from the traditional concept of a hybrid tribunal, representing an internationally dominated court with minimal local involvement. By detailing the history of judicial mechanisms employed to prosecute crimes committed during and in the aftermath of the Kosovo War from 1998-1999, …

Tribal Sovereignty And The Right To Life, Clare Holtzman

Duke Journal of Comparative & International Law

On August 26, 2020, the only Native American on federal death row, Lezmond Mitchell was executed by the federal government for the murder of two Navajo citizens on Navajo Nation land. Federal law typically gives Tribal Nations the right to determine whether the death penalty is used against their citizens for crimes committed between Tribal citizens on Tribal land. Yet here, the federal government utilized a loophole to seek the death penalty against the Navajo Nation's wishes. Lezmond Mitchell was not a sympathetic man by any means; indeed, he brutally killed a grandmother and her young granddaughter to steal their …

A Way Forward After Dobbs: Human Rights Advocacy And Self-Managed Abortion In The United States, Kelly Keglovits

Duke Journal of Constitutional Law & Public Policy Sidebar

Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening …

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.

The Lost Right To Jury Trials In "All" Criminal Prosecutions, Andrea Roth

Duke Law Journal

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the U.S. Constitution’s text is justified by …

Collective Memory, Criminal Law, And The Trial Of Derek Chauvin, Sean A. Berman

Duke Law Journal

This Note describes how criminal trials for prominent criminal acts contribute to the collective memory of the underlying offense. Hannah Arendt once argued that the purpose of criminal trials is to “render justice, and nothing else.” Unlike criminal trials, political trials strive to produce collective memory. This Note utilizes political trials as a foil to criminal trials to identify the ways that criminal trials succeed (and fail) to produce collective memory. Several features of the criminal trial— namely, the trial’s unique narrative form, constituent storytellers, capacity to capture the gravity of the offense, and jury—add to society’s shared narrative of …

Foreword: Two Americas, Doriane Lambelet Coleman

Law and Contemporary Problems

No abstract provided.

Unified Criminal Justice Reform, Brandon L. Garrett

Law and Contemporary Problems

No abstract provided.

Artificial Justice: The Quandary Of Ai In The Courtroom, Paul W. Grimm, Maura R. Grossman, Sabine Gless, Mireille Hildebrandt

Judicature International

No abstract provided.

Alaska's Lengthy Sentences Are Not The Answer To Sex Offenses, Margot Graham

Alaska Law Review

Individuals convicted of sex offenses in Alaska are serving extremely long sentences in prison. The Alaska legislature restricted the ability of those convicted of sex offenses to have their cases referred to three-judge panels for sentencing outside the presumptive sentencing range set by the legislature. The Alaska Supreme Court then held that different forms of sexual penetration are distinct and separate offenses, meaning that the associated charges cannot be merged and the sentences must run consecutively. Thus, Alaska has embraced lengthy sentences for sex offenses. Unfortunately, this punitive practice is doing little to protect Alaskan communities or rehabilitate the people …

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …

Universalizing Fraud, Parmida Enkeshafi

Duke Journal of Constitutional Law & Public Policy Sidebar

The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and prosecute fraud.

Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H. Sutherland …

Reparations For Racial Wealth Disparities As Remedy For Social Contract Breach, Martha M. Ertman

Law and Contemporary Problems

No abstract provided.

Reason And Rhetoric In Edwards V. Vannoy, Richard M. Re

Duke Journal of Constitutional Law & Public Policy

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund," may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often …

Paving The Way For Mindreading: Re-Interpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Getting It Right: Whether To Overturn Qualified Immunity, David D. Coyle

Duke Journal of Constitutional Law & Public Policy

Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court's current qualified immunity jurisprudence, which deals with whether a right is "clearly established", strays from Congress's intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine.

Given that the Court's …

Gary Myers, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding jurisprudence, overall judicial philosophy, and approach to being a judge.

Long Over-Due Process: Proposing A New Standard For Pretrial Detainees' Length Of Confinement Claims, Kendall Huennekens

Duke Law Journal

Prolonged pretrial detention poses one of the greatest unchecked threats to due process in the United States. The Supreme Court has never announced the proper analysis to adjudicate detainees’ allegations of prolonged detention pending trial (for criminal detainees) or removal (for noncitizens in immigration detention centers). Because the Court has continually ducked this constitutional question, detainees and courts alike lack guidance regarding how to vindicate this fundamental liberty interest.

This Note identifies the inconsistencies in the Court’s due process jurisprudence generally, as well as the dangers intrinsic to collapsing the standards used to evaluate pretrial detainees’ claims under the Due …

Algorithm V. Algorithm, Cary Coglianese, Alicia Lai

Duke Law Journal

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

Defining Sex, Edward Schiappa

Law and Contemporary Problems

No abstract provided.

Robert Parrish, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding his work with the North Florida Council of the Boy Scouts of America

Cliff Brinson, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding testimony at the Clinton impeachment hearing before the House Judiciary Committee on Dec. 1, 1998.

Jus Cogens Before International Courts: The Mega-Political Side Of The Story, Hélène Ruiz Fabri, Edoardo Stoppioni

Law and Contemporary Problems

No abstract provided.

“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher

Faculty Scholarship

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

Forensic Science In Legal Education, Brandon L. Garrett, Glinda S. Cooper, Quinn Beckham

Faculty Scholarship

In criminal cases, forensic science reports and expert testimony play an increasingly important role in adjudication. More states now follow a federal reliability standard, following Daubert v. Merrell Dow Pharmaceuticals and Rule 702, which calls upon judges to assess the reliability and validity of such scientific evidence. Little is known about what education law schools provide regarding forensic and scientific evidence or what types of specialized training they receive on scientific methods or evidence. Whether law schools have added forensic science courses to their curricula in recent years was not known. To better understand the answers to those questions, in …

Race And Guns, Courts And Democracy, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle and Pistol Association v. Bruen, it is especially prominent in the brief of legal aid attorneys and public defenders who employed their Second Amendment arguments to showcase stories of racial bias in the enforcement of New York’s licensing and gun possession laws. Because this Second Amendment claim came from a coalition on the left, it was widely celebrated by gun rights advocates.

In this Essay we address issues …

A Restatement Of Corporate Criminal Liability’S Theory And Research Agenda, Samuel W. Buell

Faculty Scholarship

This Article, for a collection in which authors were asked to “imagine a world without corporate criminal liability,” specifies the material questions that should be addressed if debate about the doctrine is to progress past longstanding and oft-repeated assertions. The strongest case for corporate criminal liability is based on the potential for its unique reputational effects to contribute to the prevention and deterrence of crime within corporations. Further research should take up a variety of unanswered questions about those effects having to do with mechanisms and audiences. The relevant inquiries are both theoretical and empirical. Answers will lie in further …

Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas …

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

Faculty Scholarship

No abstract provided.

The Importance Of Race, Gender, And Religion In Naturalization Adjudication In The United States, Emily Ryo, Reed Humphrey

Faculty Scholarship

This study presents an empirical investigation of naturalization adjudication in the United States using new administrative data on naturalization applications decided by the U.S. Citizenship and Immigration Service (USCIS) between October 2014 and March 2018. We find significant group disparities in naturalization approvals based on applicants’ race/ethnicity, gender, and religion, controlling for individual applicant characteristics, adjudication years, and variation between field offices. Non-White applicants and Hispanic applicants are less likely to be approved than non-Hispanic White applicants, male applicants are less likely to be approved than female applicants, and applicants from Muslim-majority countries are less likely to be approved than …