Digital Commons Network^™

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Energy Reform In Mexico: Lessons And Warnings From International Law, Guillermo J. Garcia Sanchez

Faculty Scholarship

The article analyzes some of the contents of the Mexican Energy Reform of 2013 and warns on the international legal implications that the path that Mexico has chosen to follow could bring to its economy and international relations. Concretely, it argues that in order to avoid falling into the same mistakes made by other Latin American countries in the region, Mexico must consider its obligations contained in international treaties signed with the United States on transboundary resources, and its obligations in bilateral investment treaties that protect foreign investors from certain government acts and policies.

The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the 2012 companion cases of Lafler v. Cooper and Missouri v. Frye, the United States Supreme Court held that there is a right to effective assistance of counsel during plea bargaining, even when a defendant later loses at trial. Legal commentators suggested the cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright," that the cases will have a "significant effect,"' and that they were "the term's decisions with the greatest everyday impact on the criminal justice system." But, will things really change for defendants in the wake of Lafler and Frye …

When Women Kill Newborns: The Rhetoric Of Vulnerability, Susan Ayres

Faculty Scholarship

This chapter explores feminist jurisprudence regarding women who commit acts of violence, focusing specifically on questions of agency in neonaticide (killing a newborn). A case study approach illustrates the debate in feminist theory between same-treatment and different-treatment of women as compared to men. While some feminist criminologists urge that women who kill must be viewed the same as men (as having agency and responsibility), other feminists question this approach and point out that women who commit crimes that intersect with family law receive disproportionately harsh treatment and should be treated differently than men.

This chapter contends that the paradox raised …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Faculty Scholarship

Should employees have the legal right to "be themselves" at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee's gender, race, or religion? And what if the basis for the employer's workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

Help Me, I'M Drowning! Using The Fair Housing Act To Protect Cities That Use Eminent Domain To Seize Underwater Mortgages, Emily D. Anderson

Texas A&M Journal of Property Law

This Note will demonstrate that the FHA and ECOA prohibit implementation of lenders’ threats to limit or refuse credit availability because the result would have a disproportionate effect on minorities. This Note will examine the legality of the lenders’ threats to withhold credit and, in doing so, presumes that courts will find this novel use of eminent domain constitutional. First, Part II will discuss the current situation. Section IIA will explain eminent domain and explore precisely how cities hope to use it in the mortgage note context. Section IIB will describe the growth of this plan and the cities that …

Prison, Money, And Drugs: The Federal Sentencing System Must Be More Critical In Balancing Priorities Before It Is Too Late, Whitley Zachary

Texas A&M Law Review

America is currently facing a major crisis with prison overcrowding and operating costs that exceed the annual budget. In the 1980s, the federal government began a “war on drugs” and Congress passed a number of drug statutes that carried mandatory minimum penalties for offenders. Since then, the federal prison population began to grow exponentially and has now reached a practically unsustainable level. The marginal changes made thus far are simply not enough to address the problem.

Since 1984, the federal sentencing system has struggled to efficiently and effectively balance mandatory minimum sentences with the sentencing guidelines. Mandatory minimum sentences should …

Caught Between A Rock, Negligence, Racism, And A Hard Place: Exploring The Balance Between The Eeoc’S Arrest And Conviction Investigation Guidelines And Society’S Best Interest, Eniola O. Akinrinade

Texas A&M Law Review

In many instances, employers have an obligation to conduct criminal background checks on their applicants to ensure that the public that comes into contact with these employees shall not be harmed. In other instances, these criminal background checks are unnecessary as they prove to be of little relevance, yet they have the effect of causing a disparate impact within certain Title VII-protected classes, including Black Americans and Hispanics.

To resolve this disparate impact, the Equal Employment Opportunity Commission (“EEOC”) has set forth non-biding guidance, proposing an assessment of “Green Factors” that employers should consider before denying an ex-convict employment. In …

Policing Terrorists In The Community, Sahar F. Aziz

Faculty Scholarship

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to stop terrorism before it occurs. Towards that end, community policing, developed in the 1990s to combat violent crime in inner city communities, is being adopted as a means of collaborating with Muslim communities and local police to combat "Islamist homegrown terrorism." Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among local law enforcement and the …

International Criminal Trials And The Disqualification Of Judges On The Basis Of Nationality, Milan Markovic

Faculty Scholarship

Judges who sit on the International Criminal Court (“ICC”) and other international criminal tribunals (“ICTs”) are nationals of particular states and are elected to serve largely on the basis of nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judge’s performance of his or her duties.

This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their …

To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman

Faculty Scholarship

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …

Measuring State-Created Immigration Climate, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The phenomenon of subfederal immigration regulation, in which state and local governments enact laws regulating immigrants within their jurisdictions, has become an enduring part of the American legal landscape. Though still the subject of occasional legal challenges, the focus of the national conversation has shifted from whether to have subfederal immigration regulation, to what form that regulation should take. States have taken widely varying approaches to immigration regulation; some like Arizona and Alabama have enacted restrictive, negative laws, while other states like Illinois and California have enacted laws to benefit the immigrants within their jurisdictions. Thus, in order to understand …

The Texas "Parking Lot" Law: Why Overbroad Legislative Drafting Makes Chapter 52 Of The Texas Labor Code Uniquely Susceptible To Constitutional Challenges After The New Osha Workplace Violence Regulations, Brian G. Redburn

Texas Wesleyan Law Review

This Note examines litigation over similar laws in Florida and Oklahoma, and why, in light of new Occupational Safety & Health Administration regu­lations, the mostly approving outcomes in those states could nonetheless signal constitutional challenges on the horizon for the Texas law.

Growing Inequality And Racial Economic Gaps, Thomas W. Mitchell

Faculty Scholarship

Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the "American Dream." In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a …

Making A Deal In Criminal Law, Cynthia Alkon

Faculty Scholarship

Professor Alkon describes her experiences using plea bargaining exercises in her first year, first semester, criminal law class.

The Resistance Defense, Jenny E. Carroll

Faculty Scholarship

This article explores a previously ignored set of defendants — those who choose to rely on a defense of resistance. From Warren Jeffs, the polygamist recently convicted of child rape in Texas, to John Brown, the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection, these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it. Though their belief systems varied, they appear throughout history in moments of social or political crisis and …

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

Faculty Scholarship

U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum pro- visions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over …

The Flawed U.S. Approach To Rule Of Law Development, Cynthia Alkon

Faculty Scholarship

The key flaw to the United States' approach to rule of law development is routinely including the "standard menu" of rule of law development assistance as a part of the overall development effort without regard to whether the recipient country is at a developmental stage where it is able to absorb some or all of this type of aid. This article uses Afghanistan as a case study. Despite a decade of assistance, Afghanistan remains a fragile and conflict-affected country, thus raising concerns about the value of the aid given and whether rule of law development aid should continue to be …

The Domestic Politics Of International Extradition, William Magnuson

Faculty Scholarship

Extradition poses a set of unique challenges for current theories of international law. State decisions regarding extradition involve the intersection of domestic criminal law, complex international treaties, and often overtly political considerations, thus def ing neat explanation by legal theorists. This Article argues that current theory fails to adequately explain the international law of extradition because it relies on state-centric models of international relations. By focusing our attention on unitary state interests, commentators overlook the important ways in which domestic politics shapes and influences state behavior. More particularly, this Article argues that domestic groups and institutions both constrain and empower …

Regrouping America: Immigration Policies And The Reduction Of Prejudice, Fatma E. Marouf

Faculty Scholarship

Since concerns about cohesion based on race and based on immigration tend to go hand in hand, immigration scholars have long noted the need to take them seriously. This Article contributes to an emerging body of scholarship related to the integration of immigrants by examining how current immigration policies deepen or diminish social divides and presenting a framework for analyzing proposed immigration reforms in terms of their impact on social cohesion. Specifically, the Article draws on social psychological research regarding the relationship between social categorization and intergroup relations to propose a method for analyzing how immigration reforms might impact intergroup …

The Jury's Second Coming, Jenny E. Carroll

Faculty Scholarship

This article explores the controversial issue of jury nullification by reconceptualizing nullification through the lens of the Supreme Court’s recent decisions beginning with Apprendi v. New Jersey. Apprendi’s embrace of the jury’s historical powers — require a rejection of the formalized and static paradigm in favor of a more fluid vision of the law. Despite extensive scholarship surrounding Apprendi, an innovative (though admittedly counter-intuitive) reading of the case line has been overlooked. This reading draws on Apprendi’s embrace of a vision of the law constructed and completed through jury interpretation and verdict. Interpreted in this way, the Apprendi case line …

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Faculty Scholarship

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders.

In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only …

The Icc Prosecutor's Missing Code Of Conduct, Milan Markovic

Faculty Scholarship

A largely unexamined area of law is the intersection between legal ethics and international criminal law. This article addresses this topic by focusing on certain controversial actions taken by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in connection with the Lubanga and Al-Bashir cases.

Although the ICC has adopted codes of conduct for judges and defense counsel, the OTP has no specific ethics code. This is problematic because the ICC Statute imposes conflicting obligations on the ICC Prosecutor, and as this article will show, the Prosecutor has resolved his conflicting obligations in the Lubanga and …

Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson

Texas Wesleyan Law Review

The first part of this essay examines the development of harmless error law and its application to cases involving evidence of the type implicated in wrongful convictions. The second part will look at how harmless error analysis can be reinvigorated to take into account the Innocence Project findings. This will require more than tinkering with the standards; it may mean relying less on judicial speculation about the effect of an error. Some inquiries might require remand hearings where additional evidence can be admitted to determine the importance of an error to the verdict or the strength of the remaining untainted …

Nurturing Forensic Science: How Appropriate Funding And Government Oversight Can Further Strengthen The Forensic Science Community, Craig M. Cooley

Texas Wesleyan Law Review

This Article's objective will be to discuss why adequate funding and strict government oversight are necessary to strengthening the forensic science community's scientific foundation and improve its accuracy and efficiency. If lawmakers refuse to properly fund and oversee the forensic science community, the criminal justice system's truth-seeking mission will continue to be compromised. This not only harms innocent people, who are falsely implicated by unvalidated forensic evidence or improper forensic testimony, it inflicts another wound to the victims and their families.

Exoneration And The Road To Compensation: The Tim Cole Act And Comprehensive Compensation For Persons Wrongfully Imprisoned, John Shaw

Texas Wesleyan Law Review

In recent years, the number of exonerations of persons wrongfully imprisoned has increased nationwide. With the number of exonerations continually on the rise, 27 states and the District of Columbia, have addressed the needs of exonerees with legislation that provides for the compensation of these individuals. A majority of these states offer basic monetary compensation. Basic monetary compensation, however, is not enough. The criminal justice system has failed these individuals in one way or another, and after years in prison, many are in need of more than money upon release. Texas has been leading the country in exonerating wrongfully convicted …

She Blinded Me With Science: Wrongful Convictions And The “Reverse Csi-Effect”, Mark A. Godsey, Marie Alou

Texas Wesleyan Law Review

Part I of this Essay explores the problem of "junk science" in this country that has led to a plethora of wrongful convictions of the innocent. In this Part, I suggest that, contrary to the beliefs of many CSIwatching jurors, the state of forensics in this country is far from how it is portrayed by Hollywood. Part II then discusses my anecdotal experience with cases in which jurors, who, while seemingly unaware of the problems that have been documented in this country with junk science, have convicted defendants on little more than what many in my field know to be …

Table Of Contents

Texas Wesleyan Law Review

No abstract provided.

Improving The Handling Of Mentally Retarded Defendants In The Criminal Justice System, Jacqueline Gonzales

Texas Wesleyan Law Review

This Comment has four substantive sections beginning with a brief introduction about mental retardation. It will address how previous courts have handled mentally retarded defendants and identify emerging trends regarding the execution and punishment of mentally retarded individuals. This Author will then propose changes to the current system for handling mentally retarded defendants including: specialized training for judicial officers and special processing from booking and beyond. Followed by a brief discussion on the costs of implementation, how this system will help, and how the proposed system is different from the current system in place. Establishing a separate court system and …