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Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

The Surveillance Society And The Third-Party Privacy Problem, Shaun Spencer

Shaun Spencer

This article examines a question that has become increasingly important in the emerging surveillance society: should the law treat information as private even though others know about it? This is the third-party privacy problem. Part I explores two competing conceptions of privacy: the binary and contextual conceptions. Part II describes two features of the emerging surveillance society that should change the way we address the third-party privacy problem. One feature, “surveillance on demand,” results from exponential increases in data collection and aggregation. The other feature, “uploaded lives,” reflects a revolution in the type and amount of information that we share …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole, Sonia A. Mardarewich

Sonia A Mardarewich

CERTAINTY IN A WORLD OF UNCERTAINTY: PROPOSING

STATUTORY GUIDANCE IN SENTENCING JUVENILES TO LIFE WITHOUT PAROLE

Sonia Mardarewich[1]

Florida Coastal School of Law

March 2013

Abstract: Before the Supreme Court’s decision in Miller v. Alabama, the states were divided between mandatory and discretionary life without the possibility of parole sentencing approaches. The Supreme Court decision of Miller eliminated mandatory life without parole for juvenile defendants under the age of eighteen at the time of the crime. The Supreme Court now mandates that every juvenile must be granted an individualized sentencing hearing to ensure youth and attendant mitigating circumstances …

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman

Mary N. Bowman

Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny

By Mary Nicol Bowman

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate …

Limits On The Perfect Preventive State, Michael L. Rich

Michael L Rich

Traditional methods of crime prevention—the punishment of the culpable and the preventive restraint of the dangerous—are slowly being supplemented and supplanted by technologies that seek to perfectly prevent crime by making criminal conduct practically impossible. For instance, the federal government is developing in-car technology that would prevent vehicle operation when a driver has a blood alcohol level in excess of the legal limit. Less directly, the anti-circumvention provisions of the Digital Millennium Copyright Act of 2000 try to prevent copyright infringement by eliminating technologies that enable such infringement. Such structural regulation of private conduct is not new, but few scholars …

Mercenary Criminal Justice, Ronald F. Wright, Wayne A. Logan

Ronald F. Wright

Lately, a growing number of bill collectors stand in line to collect on the debt that criminals owe to society. Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like. And some of these collectors beckon even before a final bill is due, such as prosecutors who require suspects to pay diversion fees before they file any charges.

Government budgetary cutbacks during the Great Recession have led criminal justice actors to rely on legal financial obligations (LFOs) as a source of revenue …

Punishment And Rights, Benjamin L. Apt

Benjamin L. Apt

Prevalent theories of criminal punishment lack a rationale for the precise duration and nature of state-ordered criminal punishment. In practice, too, criminal penalization suffers from inadequate evidence of punitive efficacy. These deficiencies, in theory and in fact, would not be so grave were the state to enjoy unfettered power over the disposition of criminal penalties. However, in societies that recognize legal rights, criminal punishments must be consistent with rights. Efficacy, even where demonstrable, does not suffice as a legal justification for punishment. This article analyzes the source of rights and how they function as primary rules in a legal system. …

The Jury As Constitutional Identity, Andrew G. Ferguson

Andrew G Ferguson

This article seeks to re-conceptualize jury service in America. It suggests a new theory that looks at jury service not as a discrete task, but an on-going constitutional identity. Building off a historical tradition that dates from the Founding, but can be traced through the Suffrage Movement and the Civil Rights Era, this theory focuses on reclaiming the lost constitutional connection of jury service.

Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more …

Guns, Violence, And Schools: Policies To Prevent And Respond To School Shootings, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins

Brenda A McKinney

Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover

Avidan Cover

Court opinions in the terrorism context are often distinguished by fact finding that relates to risk assessment. These risk assessments‑inherently policy decisions‑are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result courts apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article takes …

Terrorism And Associations, Ashutosh A. Bhagwat

Ashutosh Bhagwat

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these …

Policing Terrorists In The Community, Sahar F. Aziz

Sahar F. Aziz

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 prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted in counterterrorism 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 law enforcement and …

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

Speech Along The Atrocity Spectrum, Gregory S. Gordon

Gregory S. Gordon

In the abstract, speech may have much intrinsic value with its power to facilitate democracy, self-actualization, and good will. But, in certain contexts, it can also be quite deleterious, spawning division, ignorance, and hatred. Within the crucible of atrocity, speech may be similarly Janus-faced. Its power to prevent mass violence is indubitable. But its capacity for enabling mass violence is similarly unquestionable. So the issue arises: when and how may speech work for good or ill in relation to atrocity? This Article grapples with that question. And, in doing so, it finds that the relationship between speech and atrocity should …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Privacy theorists have begun to understand that a consideration of social context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the preservation of expected …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Criminal Constitutional Avoidance, William W. Berry Iii

William W Berry III

Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.

This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have …

Rebalancing The Fourth Amendment, Shima Baradaran

Shima Baradaran

The events of September 11 forever changed the political and legal response to terrorism. After more than ten years, two wars, several targeted military strikes, and significantly increased surveillance, we still have not succeeded in stopping the growth of Al-Qaeda and other terrorist organizations. The war on terror has not just been a military one. To stop terrorism, it is imperative to cut off the flow of terrorism financing. To this end, a number of nations have created financial laws that prohibit the formation of anonymous companies and monitor suspicious bank transfers. These laws have been touted as evidence that …

Oppositional Politics In Criminal Law And Procedure, Janet Moore

Janet Moore

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism, deterrence, and rehabilitation by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments across movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Part III turns that theoretical lens on …

Rebalancing The Fourth Amendment, Shima Baradaran

Shima Baradaran

Fourth Amendment decisions primarily rely on balancing tests. None of these tests account for the fundamental flaw that skews the balance in these cases. The Fourth Amendment aims to protect the privacy of all individuals against government intrusion but is always presented to courts by a criminal defendant whose hands are dirty. Thus, when a court considers a balance of privacy interests against a government’s interest in effective law enforcement, the government wins almost every time. Without mitigation of the central weakness in Fourth Amendment balancing—that a criminal defendant is protecting the rights of all of society—these constitutional inquiries fail …

International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson

Michael Anderson

Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.

This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …

The Mandate Of Miller, William W. Berry Iii

William W Berry III

In applying the Eighth Amendment’s prohibition against cruel and unusual punishments, the United States Supreme Court has long abided by one core principle: death is different. Because the consequences of an execution are unique in their severity and irrevocability, counsels the Court, the Eighth Amendment requires that capital cases receive a heightened set of safeguards not available in non-capital cases. Likewise, the Court has historically refused to apply the Eighth Amendment to restrict disproportionate sentences in non-capital cases, even where the sentence imposed seems particularly excessive.

Recently, however, the Court has twice breached this formerly impervious barrier between capital and …

Guns, Violence, And School Shootings: A Policy Change To Arm Some Teachers And School Personnel, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …

Revisiting Colorado V. Connelly: The Problem Of Fase Confessions In The Twenty-First Century, Dan Harkins

Dan Harkins

This paper analyzes how the current constitutional test formatted in Colorado v. Connelly no longer sufficiently excludes unreliable confessions from being admitted into evidence at trial. In the last twenty years, a multitude of psychological studies have demonstrated that people confess to crimes they did not commit for a wider range of reasons than are recognized by the Connelly inquiry. This paper analyzes this phenomenon and examines potential methods (both inside and outside the constitutional standard) for preventing these confessions from reaching juries at trial.

The System Of Modern Criminal Conspiracy, Steven R. Morrison

Steven R Morrison

Something has changed in the modern system of American criminal conspiracy law compared to its prior iterations. This article explores that change, arguing that the system of modern criminal conspiracy now gives to the government such great discretion to charge and prove a conspiracy that unpopular ideas and the speech that expresses them have become ready subjects of prosecution. At its center, this article defines the system of modern conspiracy law, which is one of uniformity rather than dynamism. Where dynamic systems of law contain distinct components that perform different tasks (proving actus reus and mens rea, for example), the …

Requiring Proof Of Conspiratorial Dangerousness, Steven R. Morrison

Steven R Morrison

It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil” that justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Professor Neal Kumar Katyal’s defense of conspiracy law rests on this assumption, but Professor Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true. This article argues that to impose criminal liability, prosecutors ought to be required to prove a conspiracy’s dangerousness. In doing so, it also provides insight into conspiracy law that Katyal and Goldstein leave unilluminated. Their opinions on conspiracy’s dangerousness diverge because they assume different group data …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …