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The Unrealized Promise Of Section 1983 Method-Of-Execution Challenges, Liam J. Montgomery

Liam J Montgomery

Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge …

Competency For Execution: The Implications Of A Communicative Model Of Retribution, Pamela A. Wilkins

Pamela A Wilkins

In Panetti v. Quarterman, ___ U.S. ___, 127 S. Ct. 2842 (2007), the United States Supreme Court opined that executions of mentally incompetent inmates lack retributive value and, for that reason, violate the Eighth Amendment. To date, however, the Court has failed to articulate a theory of retribution that makes sense of the ban on executing the incompetent. Importantly, the purely desert-based view of retribution that is the focus of most of the Court’s Eighth Amendment jurisprudence cannot account for the ban. This article attempts to articulate a theory of retribution that accounts for the Eighth Amendment ban and then …

Law And Biology, Morris B. Hoffman

Morris B. Hoffman

Survey of the impacts of emerging evolutionary and neuroscientific insights into the foundations of law.

An Aesthetic Defense Of The Non-Precedential Opinion: The Easy Cases Debate In The Wake Of The 2007 Amendments To The Federal Rules Of Appellate Procedure, Caleb E. Mason

Caleb E. Mason

Abstract: In this article I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80% of the output of the courts of appeals. The recent amendment to Fed. R. App. Proc. 32.1(a), requiring that all circuits allow citation to nonprecedential opinions, has provoked considerable debate about how, and whether, to issue opinions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual …

The Immoral Application Of Exclusionary Rules, Todd E. Pettys

Todd E. Pettys

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …

The Wrongfulness Of Wrongly Interpreting Wrongfulness: Provocation Interpretational Bias And Heat Of Passion Homicide, Reid Griffith Fontaine

Reid G. Fontaine

In United States criminal law, a defendant charged with murder can invoke the heat of passion defense, an affirmative, partial-excuse defense so that he may be instead found guilty of the lesser crime of manslaughter. This defense requires the defendant to demonstrate that he was significantly provoked and, as a direct result of the provocation, became extremely emotionally disturbed and committed the killing while in this uncontrolled emotional state. In this way, the law makes a partial allowance for emotional dysfunction—the wrongfulness of the homicide is mitigated when the emotionally charged reactivity restricts the actor’s capacity for rational thought and …

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

Andrew E. Taslitz

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

The Name Is The Same, But The Facts Have Been Changed To Protect The Attorneys: Strickland, Judicial Discretion, And Appellate Decision-Making, Greg O'Meara,

Greg O'Meara,

The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court’s majority decision ignores or recasts facts found in the lower courts in this case. Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written …

Motivational Law, Arnold S. Rosenberg

Arnold S Rosenberg

This article introduces a new concept of law’s motivational functions and the laws that serve those functions, which I call “motivational law.” Motivational law consists of those rules and principles, a purpose or function of which is to motivate people to comply with laws that regulate their conduct toward each other or their environment. Motivational laws include obscenity and censorship laws, religious laws on diet, dress, liturgy and ritual, military disciplinary rules, “soft law,” the doctrine of consideration in contract law, and even procedural due process.

Drawing on cognitive dissonance theory and other behavioral research, I conclude that motivational law …

Confessing In The Human Voice: A Defense Of The Privilege Against Self-Incrimination, Andrew Taslitz

Andrew E. Taslitz

ABSTRACT OF CONFESSING IN THE HUMAN VOICE: A DEFENSE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

By Andrew E. Taslitz

The privilege against self-incrimination has fallen on hard times. Miranda rights shrink, as do those more traditional “core” aspects of the privilege. Partly this is due to an implicit skepticism by the courts about the value of the privilege, despite their occasional explicit words of praise for its role in our constitutional scheme. Scholars largely, though not uniformly, agree that the privilege cannot be justified as a philosophical matter, viewing it as an unfortunate burden we are stuck with because of its …

Where Lies The Emperor's Robe? An Inquiry Into The Problem Of Judicial Legitimacy, Gregory C. Pingree

Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it …

But Did They Listen?, Robert Blecker

robert blecker

BUT DID THEY LISTEN? Instructed by the state legislature to consider all aspects of the death penalty, invited to propose appropriate legislation, the New Jersey Death Penalty Study Commission’s final report nearly unanimously urges abolition with life without parole as a substitute. Apparently unbiased in its approach and thorough in its deliberation, the Commission’s final report distorts the evidence, shows a consistent anti-retributive bias, and worst of all, ignores basic well-established perspectives framing the great debate.

'The Moral Limits Of Criminalizing Remote Harms,' 10(3) New Criminal Law Review 370, Dr. Dennis J. Baker

Dr. Dennis J Baker

I draw on accessorial liability jurisprudence in an attempt to outline the moral limits of criminalizing people for merely influencing the criminal choices of others. A person's conduct is a remote harm when it is harmless but for the fact that it encourages another independent party to commit a harmful criminal act (a primary harm). For example, the broken windows thesis holds that minor incivilities (such as passive begging) are a precursor to more serious crime. Passive begging allegedly sends a signal to criminals that the broken windows area is unpoliced and is an easy target for crime. The beggars …

"Drug Treatment Courts In The 21st Century: Improving The Criminal Justice System's Response To Drug Offenses", Peggy Fulton Hora, Theodore Stalcup

Peggy Hora

The article demonstrates that the traditional criminal justice system’s response to drug offenses – arrest, trial and incarceration and re-arrest, re-trial and re-incarceration of 70% of offenders within three years – wastes vast economic and human resources. Drug treatment courts, on the other hand, have proven to be strong alternatives to incarceration as well as effective mechanisms for dealing with America’s drug problem. The article addresses criticism of drug treatment courts, including resistance to the disease model of addiction, disputes over efficacy of treatment, legal issues related to purported coercion of treatment, concern over unbridled judicial discretion and ethical issues …

Judicial Preference, Eric J. Miller

Annette Jett

No abstract provided.

The Fault(S) In Negligence Law, Alan Calnan

Alan Calnan

ABSTRACT According to conventional wisdom, negligence is a unique tort. It is different from strict liability because it is based on fault. Although it shares fault with intentional torts, negligence’s version of fault is different because it arises from the objective standard of reasonableness. This orthodox view has existed for nearly a century and has never been challenged. Even today, no one questions the strength of tort law’s theoretical superstructure or the truth of the assumptions upon which it is based. In fact, the American Law Institute, which currently is in the process of restating tort law’s basic principles, has …

Note: Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson

Brandon N. Robinson

For decades, the famous school desegregation case of Brown v. Board of Education and its progeny have supported the notion that a State may not constitutionally require [racial] segregation of public facilities. Indeed, with regard to state-mandated racial segregation, the doctrine of separate but equal has long been considered dead and buried. In February 2005, however, the Supreme Court of the United States in Johnson v. California curiously reopened the segregation question by replacing the post-Brown ban on racial segregation with the strict scrutiny standard of review afforded to all other racial classifications, thereby muddying the once clear doctrinal waters. …

The “Csi Effect”: Better Jurors Through Television And Science?, Michael Mann

Michael D. Mann

This Comment explores how television shows such as CSI and Law & Order have created heightened juror expectations in courtrooms across America. Surprise acquitals often have prosectors scratching their heads as jurors hold them to this new "Hollywood" standard. The Comment also analyzes the CSI phenomena by reflecting on past legal television shows that have influenced the public's perception of the legal profession and how the "CSI effect" has placed an even greater burden on parties to proffer some kind of forensic evidence at trial.

The Comment was published in volume 24 of the Buffalo Public Interest Law Journal (2006).

Retribution And Corporate Crime, Kam C. Wong

Kam C. Wong

This paper explores the issue of whether the retribution theory can be applied as a justification for or as an assessment of corporate criminal punishment.

The fact that the white-collar criminals are being treated more leniently is no longer in doubt. The only question is whether the disparity in treatment is justified or more to the point whether it is fair? Issues of fairness in punishment are properly the concerns of retributionists. Ultimately, the question that needs to be answer is: on account of our understanding of the retribution theory what punishment properly fits corporate crimes and criminals? More generally, …

Evidentiary Relevance, Morally Reasonable Verdicts, And Jury Nullification, Todd E. Pettys

Todd E. Pettys

In Old Chief v. United States, the Supreme Court stated that evidence offered by the Government in a criminal case has “fair and legitimate weight” if it tends to show that a guilty verdict would be morally reasonable. This Article focuses on that proposition. First, it discusses the ways in which Old Chief’s analysis rests upon a broadened understanding of evidentiary relevance. Second, it argues that significant theoretical difficulties impede any effort to determine whether evidence tends to show that a guilty verdict would be morally reasonable. Third, it argues that adopting Old Chief’s conception of relevance would necessitate significant …