Digital Commons Network^™

Policing The Immigration Police: Ice Prosecutorial Discretion And The Fourth Amendment, Jason A. Cade

Scholarly Works

A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in …

Tales Of A Fourth Tier Nothing, A Response To Brian Tamanaha's Failing Law Schools, Lucille Jewel

Scholarly Works

This is a paper written in response to Professor Brian Tamanaha’s Failing Law Schools. Much of the book is laudable for highlighting the serious structural, policy, and moral issues confronting legal education today. However, I disagree with several of Professor Tamanaha’s ideas for reforming our system. In this paper, I write from the perspective of a tenured legal writing professor teaching at a for-profit fourth tier school, in fact, one of the schools that Tamanaha repeatedly implies are the problem and not the solution for the legal education crisis.

Part One addresses the idea, which dates back to 1921, that …

The Indefinite Quarantine: A Public Health Review Of Chronic Inconsistencies In Sexually Violent Predator Statutes, Isaac ("Zack") D. Buck

Scholarly Works

Fifteen years after the Supreme Court’s decision in Kansas v. Hendricks upheld their constitutionality, sexually violent predator (SVP) statutes exist in 20 states and the federal code. Committing sex offenders indefinitely in an effort to protect the public, SVP statutes have survived academic criticism and mushrooming expense, targeting society’s most unpopular subjects and unpalatable crimes. In upholding the statutes against constitutional attack in Hendricks, the Court relied upon the state’s demonstrable power to preventively detain individuals during public health emergencies – analogous to the civil detention model of quarantine – to establish the state’s unquestioned right to involuntarily commit sex …

A Reliance Approach To Precedent, Hillel Y. Levin

Scholarly Works

Why and when should courts presumptively defer to their own past precedents? The doctrine of precedent lies at the core of American jurisprudence and legal practice, but the source of its normative force remains unclear. Consequently, its application is confused and contested.

In this Article, I argue that precedent matters primarily because and to the extent that it generates reliance interests on the part of the public. The Article explores the moral and jurisprudential underpinnings of the reliance approach and considers its far-reaching theoretical and practical implications.

This approach, which has both descriptive and normative features, suggests that we must …

Book Review: Reimagining Child Soldiers In International Law And Policy By Mark A. Drumbl., Diane Marie Amann

Scholarly Works

Book review of Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl(New York: Oxford Univ. Press, 2012).

The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

Scholarly Works

This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …

The Problem With Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

The failure to appoint counsel in misdemeanor cases may represent one of the most widespread violations of federal constitutional rights in criminal cases. A decade ago, in Alabama v. Shelton, the Supreme Court held that indigent defendants sentenced to suspended terms of incarceration in misdemeanor cases have a constitutional right to appointed counsel, even if the defendant is never actually incarcerated. Several factors contribute to this omission. First, some jurisdictions have simply refused to honor the Court's holding. Second, potentially unconstitutional barriers to the appointment of counsel-including prohibitively high fees imposed on defendants, failures to fully inform defendants of their …

Sentence Appeals In England: Promoting Consistent Sentencing Through Robust Appellate Review, Briana Lynn Rosenbaum

Scholarly Works

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency. The deferential approach to federal sentence appeals is …

Review Of Recent Studies And Issues Regarding The P300-Based Complex Trial Protocol For Detection Of Concealed Information, J. Peter Rosenfeld, Xiaoqing Hu, Elena Labkovsky, John B. Meixner Jr., Michael R. Winograd

Scholarly Works

In this review, the evolution of new P300-based protocols for detection of concealed information is summarized. The P300-based complex trial protocol (CTP) is described as one such countermeasure (CM)-resistant protocol. Recent lapses in diagnostic accuracy (from 90% to 75%) with CTPs applied to mock crime protocols are summarized, as well as recent enhancements to the CTP which have restored accuracy. These enhancements include 1) use of performance feedback during testing, 2) use of other ERP components such as N200 in diagnosis, 3) use of auxiliary tests, including the autobiographical implicit association test, as leading to restored diagnostic accuracy, and 4) …

A Snitch In Time: An Historical Sketch Of Black Informing During Slavery, Andrea L. Dennis

Scholarly Works

This article sketches the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community’s response at that time. Despite potentially creating benefits such as crime control and sentence reduction, some Blacks today are convinced that cooperation with government investigations and prosecutions should be avoided. One factor contributing to this perspective is America’s reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely …

Identities Cubed: Perspectives On Multidimensional Masculinities Theory, Ann C. Mcginley

Scholarly Works

No abstract provided.

Theorizing From Particularity: Perpetrators And Intersectional Theory On Domestic Violence, Elizabeth L. Macdowell

Scholarly Works

The role of identity-based stereotypes about perpetrators in domestic violence cases has not received much attention in legal scholarship, which has instead focused on the identities of victims. However, stereotypes governing who is a recognizable victim (e.g., that victims are white, middle-class, passive, and dependent women in heterosexual relationships) cannot by themselves explain why nonconforming victims are sometimes successful in family court cases and other, more “perfect” victims are not. Drawing on intersectionality theory, which studies the ways experiences are shaped by the interaction of multiple identity categories, I argue that understanding this phenomenon requires a relational analysis that examines …

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

Scholarly Works

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 provisions 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 social …

Law, Language, Crime, And Culture: The Value And Risks Of Comparative Law, Christopher L. Blakesley

Scholarly Works

Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems. …

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

Scholarly Works

In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

Scholarly Works

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

We Are Always Already Imprisoned: Hyper-Incarceration And Black Male Identity Performance, Frank Rudy Cooper

Scholarly Works

In this Essay, Professor Frank Rudy Cooper recenters the experiences of men of color, particularly those of black men, in light of Reagan's War on Drugs and recent scholarship illustrating the over-representation of men of color in prison for petty drug use. The mainstream's depiction of black men as always already imprisoned disciplines us into the never-finished quest to prove we are a "Good Black Man," rather than a "Bad Black Man." In order to propose greater empathy for black men's imprisonment, this article proceeds in the following manner. In Part I, Professor Cooper sets the stage for considering the …

The School-To-Prison Pipeline Tragedy On Montana's American Indian Reservations, Melina Healey

Scholarly Works

American Indian adolescents in Montana are caught in a school-to-prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. This phenomenon has been well documented in poor, minority communities throughout the country. But it has received little attention with respect to the American Indian population in Montana, for whom the problem is particularly acute. Indeed, the pipeline is uniquely disturbing for American Indian youth in Montana because this same population has been affected by another heartbreaking and related trend: alarming levels of adolescent suicides and …

Access To Tax Injustice, Francine J. Lipman

Scholarly Works

No abstract provided.

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary E. Berkheiser

Scholarly Works

No abstract provided.

Mass Incarceration At Sentencing, Anne R. Traum

Scholarly Works

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales-individual, family, and community-and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is …

A Revised View Of The Judicial Hunch, Linda L. Berger

Scholarly Works

Judicial intuition is misunderstood. Labeled as cognitive bias, it is held responsible for stereotypes of character and credibility. Framed as mental shortcut, it is blamed for overconfident and mistaken predictions. Depicted as flashes of insight, it takes credit for unearned wisdom. The true value of judicial intuition falls somewhere in between. When judges are making judgments about people (he looks trustworthy) or the future (she will be the better parent), the critics are correct: intuition based on past experience may close minds. Once a judge recognizes a familiar pattern in a few details, she may fail to see the whole …

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

Scholarly Works

This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.

The Marshall Hypothesis And The Rise Of Anti-Death Penalty Judges, Dwight Aarons

Scholarly Works

No abstract provided.

Does Criminal Diversion Contribute To The Vanishing Civil Trial?, John B. Meixner Jr., Shari Seidman Diamond

Scholarly Works

Through his seminal work on the vanishing trial, Professor Marc Galanter has had a profound impact on public and scholarly discourse about the role of the trial in litigation, documenting the sharp reductions in the rate of civil cases since the mid-twentieth century. While there is little remaining doubt that the American civil trial is an increasingly scarce commodity, there is still much debate as to what has caused the decline.

In this Article, we seek to explore the extent to which the federal criminal docket may be contributing to the rapid disappearance of the civil trial by taking priority …

Children And The First Verdict Of The International Criminal Court, Diane Marie Amann

Scholarly Works

Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on …

A Janus Look At International Criminal Justice, Diane Marie Amann

Scholarly Works

Invoking the name of Janus, the Roman god who looked simultaneously at the past and the future, this article examines international criminal justice at a watershed moment, when a number of 20-year-old ad hoc tribunals were winding down even as the International Criminal Court was entering its teen years. First explored are challenges posed by politics – that is, the need to secure cooperation from states and from the U.N. Security Council – and economics – that is, the need to work within budgetary constraints. The article then surveys significant developments in each of a half-dozen international criminal courts and …

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

Scholarly Works

This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for …

Ham Sandwich Nation: Due Process When Everything Is A Crime, Glenn Harlan Reynolds

Scholarly Works

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process -- the decision whether to charge a defendant, and with what -- is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.