Digital Commons Network^™

An Empirical Examination Of The Factors Associated With The Commutation Of State Death Row Prisoners’ Sentences Between 1986 And 2005, John D. Kraemer

John D Kraemer

Commutation is usually a death row prisoner’s last hope of evading his or her capital sentence. However, unlike many other stages of the death penalty process, little research focuses on the factors that affect decisions to commute or allow a death sentence to go forward, and that which has been conducted utilizes data which is now nearly a decade old. This paper seeks to examine personal and demographic factors associated with commutation decisions and to resolve incon- sistent findings in the prior research. Using the statistical method of multiple logistic regression, this paper finds statistically significant disparities in the odds …

Cross-Examining Film, Jessica M. Silbey

Jessica Silbey

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a “dash-cam,” a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

A Dialogical-Republican Revival: Respect-Worthy Constitutionalism In Post-Conflict Northern Ireland, South Africa, And Southern Philippines, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design and negotiation for deeply divided societies in post-conflict settings. It argues in favor of the adoption and application of what might be termed as the “dialogical” model of democratic constitutionalism as opposed to the “enforcement” model which characterizes much of contemporary legal ordering. In discussing their features, the Article charts a normative apparatus for making the constitutional choice between the two, and, thereafter, it tests theory into practice by undertaking a comparative analysis of what might well be successful policymaking and constitution-making practices in Northern Ireland and South Africa. The findings show …

On Universal Jurisdiction—Birth, Life And A Near-Death Experience?, Helena Gluzman

Bocconi Legal Papers

This paper investigates the topic of universal jurisdiction, ie the supranational prosecution and repression—without the necessity of a link between the accused and the prosecuting state—of crimes of such gravity and magnitude as to collide with certain core values accepted by the international community and transcending the peculiarity of national interests. The focus of the chapter is exactly to try and discern the scope of universal jurisdiction, distinguishing between the two different versions of universality theorized by contemporary authors: ‘conditional universal jurisdiction’, which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction’, according to which …

An Indirect-Effects Model Of Mediated Adjudication: The Csi Myth, The Tech Effect, And Metropolitan Jurors' Expectations For Scientific Evidence, Hon. Donald E. Shelton, Young S. Kim, Gregg Barak

Hon. Donald E. Shelton

Part I of this article defines the "CSI effect", given that the phrase has come to have many different meanings ascribed to it. It emphasizes the epistemological importance of first describing the effect of the “CSI effect” as observed in juror behavior documented in a new study conducted in Wayne County (Detroit), Michigan, and then looking at causative factors that may be related to an explanation of those observed effects. Part II describes the methodology of the Wayne County study, provides a descriptive analysis of Wayne County jurors, and compares the jurors demographically to the Washtenaw County jurors who were …

Twenty-First Century Forensic Science Challenges For Trial Judges In Criminal Cases: Where The "Polybutadiene" Meets The "Bitumen", Hon. Donald E. Shelton

Hon. Donald E. Shelton

This artice discusses the challenges faced by trial judges in crimnal cases in fulfilling their Daubert "gatekeeping" role in the face of rapid advancements in forensic science. Admissibility questions for various forms of scientific evidence are reviewed, from DNA to fingerprints to social science "syndrome" evidence. The article discusses the pretrial issues presented by DNA databases, search issues and limitations problems as well as the impact of forensic science developments on juror expectations. Finally, forensic science issues regarding trial conduct are discussed, including voir dire, arguments and jury instructions,

Ip Addresses And Personal Data: K.U. V Finland, Karen Mccullagh

Karen McCullagh

Classifying IP addresses as personal data could have serious implications for search engines and many other electronic businesses, in particular, the personalised advertising business model of the Internet. Recent court decisions have not clarified the position, so businesses that log IP addresses should proceed with caution.

Police Education In China, Kam C. Wong

Kam C. Wong

A comprehensive review of literature shows that there is currently no academic study on PRC police education, in the West. More significantly, a review of a selected comparative criminal justice text books shows that the U.S. students are not being exposed to Chinese criminal justice and policing. The lack of literature on China obstructs comparative criminal justice (police) research.

This article of first impression seeks to provide an overview PRC police education system.

This article is organized as follows. To anchor the study, Section I provides a brief review of literature on general theory and best practice of police education …

Does Strickland Prejudice Defendants On Death Row? Forthcoming In 43 U. Rich. L. Rev. (2009), Kenneth Williams

Kenneth Williams

In Baze v. Rees, the Supreme Court reaffirmed the constitutionality of the death penalty in general and lethal injection in particular. Since no executions were allowed while the cse was being considered, there will be a substantial number of executions over the next few years. Although the facts and circumstances of each case will differ, one common theme is likely to emerge: that the defendants did not receive adequate legal representation at their trials. This article addresses this enduring problem. In particular, I assert that the Supreme Court's requirement in Strickland v. Washington, that a defendant prove prejudice in order …

Neuroimaging In Criminal Trials: Evidentiary And Constitutional Concerns, Kristen M. Nugent

Kristen Nugent

No abstract provided.

The Bush Administration And Civil Rights: Lessons Learned, Goodwin Liu

Goodwin Liu

No abstract provided.

The Intersection Of Judicial Attitudes And Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making, Jeff L. Yates, Elizabeth Coggins

Jeff L Yates

Two prominent theories of legal decision making provide seemingly contradictory explanations for judicial outcomes. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences -- judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. In contrast, in the law and economics literature, Priest and Klein's well-known Selection Hypothesis posits that court outcomes are largely driven by the litigants' strategic choices in the selection of cases for formal dispute or adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily …

Future Orientation Of Adolescents In Foster Care: Relationship To Trauma, Mental Health, And Hiv Risk Behaviors, Peter Cabrera, Wendy Auslander, Michael Polgar

Elián P. Cabrera-Nguyen

Future orientation has been found to protect against risk behaviors in adolescents from diverse backgrounds. However, no studies have specifically examined future orientation as a potential protective factor against HIV risk behaviors in foster care adolescents. In this study, 343 foster care adolescents were interviewed about their future orientation, mental health, trauma histories, and cognitions related to HIV risk behaviors. Results indicated variability in future orientation, but there were no significant differences by race, gender, and age. Future orientation was significantly associated with mental health, trauma, HIV-related knowledge, attitudes, behavioral intentions, and number of sexual intercourse partners. Furthermore, externalizing behaviors …

An Examination Of The Persistence Of The Residual Child Welfare System In The United States: Addressing Charges Of Radical Theoretical Myopia With Implications For Social Work Practice, Peter Cabrera

Elián P. Cabrera-Nguyen

The United States follows what has been termed a residual approach to its public child welfare system. This article describes the residual model and contrasts it with the policies of other industrialized nations. It also explores the causes and persistence of the residual model in the United States through the lens of structural-functionalist theory. By doing so, this article attempts to respond to critics of structural social work who maintain that it is overly reliant on conflict theory and has nothing to offer in terms of distinct practice methods. Suggestions for a structurally informed social work practice are made.

No Rational Basis: The Pragmatic Case For Marijuana Law Reform, Eric Blumenson

Eric Blumenson

This article presents a critique of marijuana prohibition and suggests some alternative regulatory approaches that would be more productive and consonant with justice. Part I relies on a forty-year empirical record to demonstrate that (1) reliance on a law enforcement approach has aggravated rather than mitigated the risks involved with marijuana use, and (2) criminalization, which results in the arrest of more than 700,000 Americans annually for possession of any amount of marijuana, is an inhumane and destructive response to an act that almost 100 million Americans have committed. Part II assesses the relative merits of several alternative reform policies, …

Pretend “Gun-Free” School Zones: A Deadly Legal Fiction, David B. Kopel

David B Kopel

Most states issue permits to carry a concealed handgun for lawful protection to an applicant who is over 21 years of age, and who passes a fingerprint-based background check and a safety class. These permits allow the person to carry a concealed defensive handgun almost everywhere in the state. Should professors, school teachers, or adult college and graduate students who have such permits be allowed to carry firearms on campus? In the last two years, many state legislatures have debated the topic. School boards, regents, and administrators are likewise faced with decisions about whether to change campus firearms policies. The …

Eyewitness Corroboration Requirements As Protections Against Wrongful Conviction: The Hidden Questions, David Crump

David Crump

Several commentators have suggested the adoption of a rule requiring corroboration of eyewitness identification testimony. The concern underlying this proposal has merit, because misidentifications probably account for the largest share of erroneous convictions. But no one has catalogued the possible side effects of such a rule. Would the proposal have bad effects on the control of crime? Would it produce disproportionate acquittals in some crime categories, so that it might amount to a “Violent Predator’s Relief Act”? Would it result in even greater oppression of innocent people? What do the proponents mean by “corroboration,” anyway? What corroboration should be deemed …

Reconsidering The Felony Murder Rule In Light Of Modern Criticisms: Doesn't The Conclusion Depend Upon The Particular Rule At Issue?, David Crump

David Crump

Until 1985, the reasons for the virtually universal retention of the felony murder doctrine were a mystery. Academic commentators could find almost nothing good to say about the rule. In that year, however, the present author and a coauthor proposed a number of policies that arguably are served by the felony murder doctrine. Today, the debate has changed, with most commentators recognizing that there are arguments supporting the rule that some lawmakers, at least, might credit. As might be expected, however, the debate continues. By and large, academics continue to oppose the rule even while recognizing the supporting arguments, while …

Judgment, Identity, And Independence, Cassandra Burke Robertson

Cassandra Burke Robertson

Whenever a new corporate or governmental scandal erupts, onlookers ask “Where were the lawyers?” Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider’s perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers’ failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that …

The New Laches: Creating Title Where None Existed, Kathryn E. Fort

Kathryn Fort

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will …

Controlling Security In A Culture Of Fear, Mireille Hildebrandt

Mireille Hildebrandt

Who controls security in a culture of fear? The erosion of traditional safeguards in the quest for security raises questions about the meaning of justice, public protection, legal safeguards and resilience. The book presents a cross-disciplinary exchange on the notion of fear and its influence on international criminal, economic and security policy. The authors chart new lines of research as they proffer a variety of perspectives on the problems and trends that are emerging from national and international responses to insecurity. The diversity of the views expressed in this volume underscores the complexities of assuring security in a world beset …

The Improper Application Of The Clear-And-Convincing Standard Of Proof: Are Bankruptcy Courts Distorting Accepted Risk Allocation Schemes?, Samir D. Parikh

Samir D. Parikh

Bankruptcy proceedings tend to involve civil disputes where nothing more than money is at stake. In such instances, the application of the preponderance-of-the-evidence standard of proof offers the greatest utility and is aligned with the comparatively minimal importance society places on purely monetary disputes. However, bankruptcy courts are not viewed as typical civil courts. Rather, many view these courts as “courts of equity” and this perception serves as a crutch which many bankruptcy judges use in advocating the application of the clear-and-convincing standard of proof to customary civil disputes. These actions distort the accepted risk allocation schemes implicit in standards …

Daubert V. Merrell Dow Pharmaceuticals And The Local Construction Of Reliability, Robert R. Robinson

Robert R Robinson

Scholars considering how expert testimony will fare under Daubert often apply the four dicta referenced by Justice Blackmun (testing, peer-review, error rate, and general acceptance) to determine whether such testimony will be admissible. In this article I critique this approach, contending that admissibility decisions cannot be adequately predicted by Daubert itself. Daubert has no clear legal rule for judges to apply, has no cognizable position on the degree of scrutiny expert testimony should face, and has no clear stance—even given the dicta—on what constitutes “good science.” When combined with the relative autonomy trial judges possess in making admissibility decisions, Daubert’s …

Extraordinary Language In The Courts Of Cambodia: Interpreting The Limiting Language And Personal Jurisdiction Of The Cambodian Tribunal, Sean Morrison

Sean Morrison

As the new Extraordinary Chambers for the Courts of Cambodia (ECCC) prepares to begin trials this year, one issue that will confront it is the meaning of the limiting terms described in its establishing statute. Prosecutions before the ECCC are limited to “senior leaders of Democratic Kampuchea and those who were most responsible” for the crimes committed during the Khmer Rouge regime. This phrase raises two important questions for the court: whether this limiting language defines the court’s personal jurisdiction, and if so, what the scope of these phrases is.

This paper will attempt to understand the function and scope …

Deciding The Fate Of Complementarity: A Colombian Case Study, Jennifer Easterday

Jennifer Easterday

For over 40 years, one of the worst humanitarian crises in the world has ravaged Colombia, victimizing and displacing nearly a tenth of the population. In an effort to end the conflict, the Colombian government claims it is turning to transitional justice and with the Justice and Peace Law, creating accountability and providing reparations for victims. Yet, upon careful examination of the politics of justice in Colombia, it appears as though the passage of the Justice and Peace Law may be merely an attempt to shield human rights abusers from criminal liability and evade ICC intervention. How the ICC interprets …

The Forgotten Fifth: Rural Youth And Substance Abuse, Lisa R. Pruitt

Lisa R Pruitt

This Article seeks to raise the visibility of the roughly twenty percent of the U.S. population who live in rural places—an often forgotten fifth—in relation to the particular challenges presented by adolescent substance abuse. Despite popular notions that substance abuse is essentially an urban phenomenon, recent data demonstrate that it is also a significant problem in rural America. Rural youth now abuse most substances, including alcohol and tobacco, at higher rates and at younger ages than their urban peers.

The Article assesses the social, economic and spatial milieu in which rural adolescent substance abuse has burgeoned. Some features of some …

The Need For Expert Psychological Testimony On Eyewitness Identification, Roy S. Malpass, Stephen J. Ross, Christian A. Meissner, Jessica L. Marcon

Christian A. Meissner, Ph.D.

No abstract provided.

False Confessions, Christian A. Meissner, Allyson J. Horgan, Justin S. Albrechtsen

Christian A. Meissner, Ph.D.

No abstract provided.

Hamas Controlled Televised News Media: Counter- Peace, Allen Gnanam

Allen Gnanam

The hegemonic force of Hamas censored televised news media in Gaza, can not be fully comprehended and appreciated without recognizing the role of propaganda, censorship, and the historical context of the middle east. These 3 interrelated dimensions will be analyzed using functionalism, the mass society theory, the dominant ideology framework, the critical criminology framework, and the symbolic interactionist framework. Through censorship, Hamas news media outlets were able to unilaterally inject culturally relevant propaganda, into the minds of children and citizens. The hypodermic syringe model can be applied to the state controlled news media situation in Gaza, as the people of …

Crime And Precaution, Allen Gnanam

Allen Gnanam

Precautionary logic and risk assessments can be associated with counter terrorism, criminal profiling, and the management of high risk individuals/ groups. Overall, risk precautionary logic and risk assessments can be framed using the Ban-opticon concept identified by Bigo, though panopitic elements do exist when discussing concepts of surveillance. The Ban opticon framework has 3 major concepts: (a) Criminal profiling, (b) the management of movement and (c) exceptionalism.

Both precautionary logic and risk assessments are associated with the profiling of harms and threats, the management of individual or group movement, and both are used to provide qualitative and quantitative rationale for …