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War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins

Lori A. Ringhand

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which …

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Timothy W Waters

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science. What can be …

Sugarcoating The Eighth Amendment, Christopher J. Declue

Christopher J DeClue

This Article demonstrates that Eighth Amendment gross disproportionality review is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a conceivable government purpose. Case law illustrates a similar standard is applied in the face of an Eighth Amendment challenge to the length of a prison sentence. Under gross disproportionality review, the length of a sentence is upheld so long as the sentence furthers a conceivable penological purpose. Moreover, under this standard, the length of a sentence violates the Eighth Amendment only on the rare occasion that …

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

Indecisive Reasons For Action: Socrates, Not Hercules, As Judicial Ideal, Eric J. Miller

Eric J. Miller

Ronald Dworkin famously introduces the idealized judge, Hercules, to demonstrate how to identify one right answer for any legal problem. Since judicial disagreement makes sense, according to Dworkin, against the background of plural theories of the good, Hercules solves a particular political problem: how to avoid apathy or indecisiveness in choosing among competing theories. Dworkin's judge is supposed to stand by his or her political convictions in the face of competing, plural points of view. Choosing the one right answer is thus a method of political commitment.

My claim is that Dworkin is caught between a rock and a hard …

Sugarcoating The Eighth Amendment: Gross Disproportionality Review Is Simply The Fourteenth Amendment Rational-Basis Test, Christopher J. Declue

Christopher J DeClue

It is extremely difficult for a defendant to successfully challenge the length of a sentence under the Eighth Amendment’s prohibition of cruel and unusual punishment. To succeed in such a challenge, a defendant must establish that his sentence is grossly disproportionate to the offense. However, the Court has never offered consistent, workable guidelines to determine whether a sentence is grossly disproportionate.

This Article demonstrates that gross disproportionality review is simply a rational-basis test, one which is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a …

Sugarcoating The Eighth Amendment: Gross Disproportionality Review Is Simply The Fourteenth Amendment Rational-Basis Test, Christopher J. Declue

Christopher J DeClue

It is extremely difficult for a defendant to successfully challenge the length of a sentence under the Eighth Amendment’s prohibition of cruel and unusual punishment. To succeed in such a challenge, a defendant must establish that his sentence is grossly disproportionate to the offense. However, the Court has never offered consistent, workable guidelines to determine whether a sentence is grossly disproportionate.

This Article demonstrates that gross disproportionality review is simply a rational-basis test, one which is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a …

Evaluating Children’S Competency To Testify: Developing A Rational Method To Assess A Young Child’S Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse, Laurie Shanks

Laurie Shanks

There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many …

Specialized Courts For Terrorism Trials, Sudha Setty

Sudha Setty

On the campaign trail in 2008, presidential candidate and then-Senator Barack Obama promised to restore America’s place in the world by breaking with many of the national security policies put into effect by President George W. Bush. In January 2009, President Obama made numerous changes to United States foreign policy, including signing an executive order to close the prison at Guantanamo Bay, Cuba and announcing that the United States would not engage in interrogation techniques that constitute torture. In some aspects of national security law and policy, however, Obama has followed the example of President Bush—for example, in his announcement …

The Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, Alan F. Williams

Alan F. Williams

No abstract provided.

The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda

Aldo Zammit Borda

The Rome Statute (RS) of the International Criminal Court (ICC) is a milestone for the role it accords to victims in international criminal proceedings. The provisions on victims’ participation in the RS system have been applied for the first time in the case of Mr Thomas Lubanga Dylio. This paper takes the view that a number of significant interlocutory pronouncements on victims’ participation have already been made by the ICC Pre-Trial, Trial and Appeals Chambers which, as such, deserve further analysis. The paper will firstly provide a brief overview of developments with regard to victims’ participation in the area of …

Let My People Go: Ethnic In-Group Bias In Judicial Decisions – Evidence From A Randomized Natural Experiment, Oren Gazal-Ayal, Raanan Sulitzeanu-Kenan

Oren Gazal-Ayal

Does ethnic identity affect judicial decisions? We provide new evidence on ethnic biases in judicial behavior, by examining the decisions of Arab and Jewish judges in first bail hearings of Arab and Jewish suspects in Israeli courts. Our setting avoids the potential bias from unobservable case characteristics by exploiting the random assignment of judges to cases during weekends, and by focusing on the difference in ethnic disparity between Arab and Jewish judges. The study concentrates on the early-stage decisions in the judicial criminal process, controlling for the state's position, and excluding agreements, thereby allowing us to distinguish judicial bias from …

Culture Clash: The Challenge Of Lawyering Across Difference In Juvenile Court, Tamar R. Birckhead

Tamar R Birckhead

In analyzing the causes of wrongful convictions of youth in juvenile court, the role of the defense attorney can be overlooked and its importance underestimated. Although juvenile defenders are trained to advocate based on their young client‟s expressed interest rather than relying on what they deem to be in the child‟s best interest, this basic tenet is often more challenging to follow than is commonly acknowledged. The norms of effective criminal defense practice—which emphasize rigorous oral and written advocacy with little mention of whether the client has learned a lesson from the experience—stand in direct contrast to the informal culture …