Digital Commons Network^™

Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard E. Harcourt

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No abstract provided.

Memo To The President (And His Opponents): Ideology Still Counts, David A. Strauss

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No abstract provided.

Zoning: Deliberative Democracy At Zero Prices, Richard A. Epstein

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No abstract provided.

Gender, Truth & Transition, Fionnuala Ní Aoláin, Catherine Turner

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This article introduces the role and function of truth commission and explores a number of the structural and institutional components which profoundly affect women's experiences of accountability in times of transition.

Causes Of Popular Dissatisfaction With The Administration Of Justice In The Twenty-First Century, Robert Stein

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We are here today to celebrate and be challenged by a remarkable speech delivered by Dean Roscoe Pound on August 29, 1906. 1 We meet in the city where Dean Pound gave his historic address. On that occasion, Dean Pound was not Dean of the Harvard Law School, which he later became, but rather was the 36-year-old Dean of the University of Nebraska College of Law. 2 He was a well- educated man, having both a law degree from Northwestern University School of Law and a PhD in Botany from the University of Nebraska, 3 but he was not very …

Crime, Criminal Justice, And Criminology In The Netherlands, Michael Tonry, Catrien Bijleveld

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No abstract provided.

Determinants Of Penal Policies, Michael Tonry

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Unmitigated Punishment: Adolescent Criminal Responsibility And Lwop Sentences, Barry C. Feld

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For more than a century, youth crime policies have oscillated between periods of more lenient treatment and harsher punishment. Justice officials and the public alternatively attributed high crime rates either to ";soft"; rehabilitative policies and advocated ";tougher"; sanctions, or to excessively harsh penalties that failed adequately to treat youths. A century ago, Progressive reformers combined a more modern construction of childhood with a more scientific conception of social control to create a judicial-welfare alternative and to remove children from the adult criminal process. 2 They used juvenile courts to assimilate, ";Americanize,"; and control ";other people's"; children.

A Century Of Juvenile Justice: A Work In Progress Or A Revolution That Failed?, Barry C. Feld

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A century ago, Progressive reformers adopted a more modem construction of childhood as a developmental period of innocence, dependence, and vulnerability. They embraced a more scientific understanding of social control - positive criminology - and tried to identify the causes of crime and to treat, rather than to punish, offenders. Reformers combined the new vision of childhood with new insights into criminality to create a judicial-welfare alternative to the adult criminal process. Jurisdiction over dependent as well as delinquent children reflected juvenile courts' broader role as a child-saving welfare agency and not simply a "junior" criminal court.'

Beyond Judicial Minimalism, Cass R. Sunstein

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No abstract provided.

Faith In Community: Representing "Colored Town", Anthony V. Alfieri

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No abstract provided.

The Limits Of Intelligence In Maritime Counterproliferation Operations, Craig Allen

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This article begins with an examination of the intelligence needs of those engaged in maritime counterproliferation efforts. It then turns to risk-management decision making under conditions of uncertainty, focusing on decisions at the operational level and exploring the question of whether decision strategies in the WMD context should seek to minimize false-negative or false-positive errors. It concludes that even vastly improved maritime intelligence will not obviate the need for national and operational commanders to make decisions under conditions of uncertainty and that such decisions should be made on the basis of established risk-assessment and management principles. At the same time, …

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Johanna Kalb

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No abstract provided.

Law Enforcement In Subordinated Communities: Innovation And Response 2008 Survey Of Books Related To The Law - Policing And Race, Richard Delgado

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Parallel Courts In Post-Conflict Kosovo, Elena Baylis

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Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is …

Muhammad's Social Justice Or Muslim Cant?: Langdellianism And The Failures Of Islamic Finance, Haider Ala Hamoudi

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Though it is advertised and promoted as the bulwark of an alternative economic system based on populist Muslim notions of social justice and fairness, Islamic finance as a practice has failed to meet these objectives. The causes of that failure and the question of whether alternative approaches are possible are the subject of this Article.

The failure of Islamic finance to provide that which it promotes is the direct consequence of the application of an Islamic logic driven interpretive system through which rules are derived, which its adherents claim was formalized and systematized by the early jurist Muhammad Ibn Idris …

The Importance Of Research On Race And Policing: Making Race Salient To Individuals And Institutions Within Criminal Justice, David A. Harris

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For years, criminologists have directed research efforts at questions at the intersection of race and law enforcement. This has not always been welcomed by practitioners, to put it mildly; rather, many police officers view research focused on race and policing as nothing short of an attempt to paint the policing profession and police officers as racist.

This commentary argues that, to the contrary, research into race and policing can still impart to everyone in our society, including police officers and their law enforcement institutions, much that they do not know about how race plays a role in both routine and …

Re-Conceptualizing Poverty Law Clinical Curriculum And Legal Services Practice: The Need For Generalists, Jonel Newman

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No abstract provided.

Due Process Rights And Terrorist Emergencies, James W. Nickel

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This essay discusses the grounds for due process rights (DPRs) and the permissibility of suspending them during terrorist and other emergencies. The two topics are profitably treated together because DPRs - along with freedoms of movement, expression, and political participation - are often suspended or restricted when national emergencies occur. Although I present a strong case for DPRs as human rights, this justification does not settle their priority during emergency situations. That issue raises additional questions, and I discuss some of them. The overall thrust of the essay is to defend the importance of respecting DPRs during troubled times. The …

Search Me?, John Burkoff

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Professor Burkoff contends that most people who purportedly "consent" to searches by law enforcement officers are not really - freely and voluntarily, as the Supreme Court decisional law supposedly requires - consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment. Professor Burkoff argues, however, that the Supreme Court's 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before …

Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand

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Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers …

Jurisprudential Schizophrenia: On Form And Function In Islamic Finance, Haider Ala Hamoudi

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Despite its explosive growth over the past several decades, Islamic finance continues to have trouble attracting large numbers of otherwise pious Muslims as potential investors. The underlying reason for this is that the means that the practice employs to circumvent some of the central Muslim bans relating to finance (most notably, the ban on interest) are entirely formal in their structure and are equivalent to conventional structures both legally and economically. However, the practice purports to serve functional ends; namely, through offering Muslims alternative means of finance that are intended to further Islamic ideals of fairness and social justice. This …

The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues, Robert Aronson, Jacqueline Mcmurtrie

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This essay first addresses the ethical and evidentiary standards for the emerging use of high-tech computer-generated animations and computer-assisted closing arguments. Next, this essay considers the same questions within the context of forensic DNA evidence. Third, this essay considers the ethics of prosecutors' use of such evidence and the consequences for the misuse of this evidence. Finally, this essay suggests remedies to ethical problems facing prosecutors in their use of this kind of evidence.

Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar

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Francis A. Allen, who spent the last eight years of his distinguished teaching career at the University of Florida, Fredric G. Levin College of Law, died at the age of eighty-seven. He was a leading figure in law teaching, and the legal profession generally, for more than four decades.

Introduction, Kyron Huigens

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No abstract provided.

The Preventive Paradigm And The Perils Of Ad Hoc Balancing, Jules Lobel

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This article addresses the claim that times of crisis require jettisoning legal rules in favor of ad hoc balancing. Part I demonstrates that the coercive preventive measures adopted by the Bush administration in carrying out the War on Terror discarded clear legal rules in favor of ad hoc balancing and relied on suspicions rather than objective evidence. Part II examines the claims of prevention paradigm supporters that ad hoc balancing is necessary in the new post-911 era in order to reach decisions that correctly weigh the values of liberty and peace versus national security. This article argues that discarding the …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

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This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

Access To The Courts: An Essay For The Georgetown University Law Center Conference On The Independence Of The Courts, David S. Udell, Rebekah Diller

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No abstract provided.

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

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THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

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Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …