Digital Commons Network^™

Teacher/Police: How Inner-City Students Perceive The Connection Between The Education System And The Criminal Justice System, Cara Mcclellan

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No abstract provided.

Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt

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No abstract provided.

The Police Gamesmanship Dilemma, Mary D. Fan

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Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …

Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel

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No abstract provided.

Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares

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Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches-namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question …

Regulation For The Sake Of Appearance, Adam M. Samaha

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Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …

Establishing Connections: Gender, Motor Vehicle Theft, And Disposal Networks, Christopher W. Mullins, Michael Cherbonneau

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As with most other serious street crimes, motor vehicle theft is a male-dominated offense. Yet, women do engage in motor vehicle theft, albeit at a reduced rate of participation. Here we examine the gendered nature of motor vehicle theft through direct comparison of qualitative data obtained from 35 juvenile and adult men and women actively involved auto theft in St. Louis, Missouri. By tracing similarities and differences between men’s and women’s pathways of initial involvement, enactment strategies, and post-theft acts, we provide a contextual analysis of offender’s perceptions and behavior. Such an approach allows a more precise discussion on gender’s …

Failing Juvenile Courts And What Lawyers And Judges Can Do About It, Emily Buss

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No abstract provided.

The Constitutionality Of Proposition 8, Richard A. Epstein

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No abstract provided.

Gendering Constitutional Design In Post-Conflict Societies, Dina Francesca Haynes, Fionnuala Ní Aoláin, Naomi Cahn

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Over the past quarter-century, many countries have experienced deeply divisive and highly destructive armed conflicts, ranging from Afghanistan to The Democratic Republic of Congo to Rwanda, East Timor, Northern Ireland, and the countries of the former Yugoslavia. Each of these countries is at a different point on the spectrum of emerging from and addressing the causes of conflicts. Moreover, with varying degrees of intervention and assistance from the international community, each is responding in highly differentiated ways to the challenges of emerging from conflict, as well as rebuilding or creating new institutions to allow movement forward.

The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt

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The interaction between human rights law and international humanitarian law (IHL) has received a great deal of scholarly attention. Commentators note the increased presence of IHL in the work of human rights bodies. There remains an interesting gap in the debate, however: while human rights bodies may be referencing international humanitarian law, what are they doing with it? To what extent are they interpreting its protections under a human rights framework? Are they performing substantive or precedential analysis of IHL? This article addresses one measure of that gap by comprehensively examining the work of the Committee on the Rights of …

Producing Governable Subjects: Images Of Childhood Old And New, Karen Smith

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Conceptions of childhood in terms of ‘evil’ and ‘innocence’ transcend time and culture. These conflicting images are deployed by Chris Jenks as the Dionysian and Apollonian models of childhood to symbolize external and internal forms of control. Drawing on the literature on governmentality this paper revisits these models and introduces a third model, the ‘Athenian’ child, analogous and supplementary to those developed by Jenks. This model is necessary in order to take account of relatively recent strategies in the government of childhood, which, predicated on understandings of children in terms of competence and agency, operate via responsibility and reflexivity.

Rethinking The Interest-Convergence Thesis, Justin Driver

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No abstract provided.

The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq

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A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a …

The Political Path Of Detention Policy, Aziz Huq

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No abstract provided.

Student-Edited Law Reviews And Their Role In U.S. Legal Education, Daniel H. Foote

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>p>For well over a centur y student-edited law reviews have been a major vehicle for publication of scholarship on law in the United States. At those law reviews, students bear responsibility for nearly all aspects of the publication process, including the vitally important task of selecting what works will be published. Criticisms have been raised over various aspects of this system, but they have not stemmed the rise of student-edited law reviews. Today, such law reviews are firmly entrenched as a central feature of the U.S. legal system; and, facilitat­ ed by advances in technology, the number of student-edited …

Tangled Up In Knots: How Continued Federal Jurisdiction Over Sexual Predators On Indian Reservations Hobbles Effective Law Enforcement To The Detriment Of Indian Women, Suzianne D. Painter-Thorne

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Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with little fear of prosecution. As Fort Peck Tribal Chairman A.T. “Rusty” Stafne explained, “Our people are afraid because there are persons committing crimes against us at night and in broad daylight....We have criminals that are simply unafraid of prosecution.” Indeed, “[t]o a sexual predator, the failure to prosecute sex crimes against American Indian women is an invitation to prey with impunity.”

Congress has responded to the epidemic of reservation crime with the Tribal Law and Order Act27 (TLOA). But, as this article explains, the …

Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff

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Sex offenders have become the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations in recent decades have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information about sex offenders be made public. Using the evolution of state law during the 1990s and 2000s, we study how registration and notification affect the frequency of reported sex offenses and the incidence of such offenses across victims. We find evidence that registration reduces the frequency of sex offenses by providing …

Documentary Disenfranchisement, Jessie Allen

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In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfranchisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of …

Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore

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Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and …

Promoting Democracy In Prosecution, Russell M. Gold

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No abstract provided.

The Wretched Of The Earth, Richard Delgado

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In the following essay part of a symposium on criminal punishment and social deprivation Richard Delgado revisits a subject he addressed 25 years ago in a classic article on the rotten social background defense He ponders why this defense has found only a slight foothold in the law of criminal defenses and asks what this failure means about our basic social commitments

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

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In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.

While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The …

Human Rights Treaties In State Courts: The International Prospects Of State Constitutionalism After Medellin, Johanna Kalb

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No abstract provided.

But That Is Absurd! Why Specific Absurdity Undermines Textualism, Linda Jellum

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No abstract provided.

Best Practices For Hiring And Retaining A Diverse Law Faculty, Kellye Y, Testy

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As with all institutions, the history, character, identity, and accomplishments of each law school are the direct result of its people and their acts. For that simple reason, diversity is critical; it goes to the very core of what the institution is and what it does. With legal institutions, in particular, diversity plays a critical role in shaping the perception of the institution held by persons outside of it. In order for our system of law to function as the bedrock of our democratic society that it aims to be, legal institutions must be perceived as fair and just. If …

Creating An Effective Corporate Compliance Plan: Part Ii, Pamela Bucy Pierson, Anthony A. Joseph

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No abstract provided.

Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth

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We review the extensive body of studies relying on jurors' self-reports in interviews or questionnaires, with a focus on potential threats to validity for researchers seeking to answer particularly provocative questions such as the influence of race in jury decision-making. We then offer a more focused case study comparison of interview and questionnaire data with behavioral data in the domain of race and juror decision-making. Our review suggests that the utility of data obtained from juror interviews and questionnaire responses varies considerably depending on the question under investigation. We close with an evaluation of the types of empirical questions most …

Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross

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The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

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Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …