Law Commons^™

Quasi-Inquisitorialism: Accounting For Deference In Pretrial Criminal Procedure, Jennifer E. Laurin

Notre Dame Law Review

Police and prosecutorial activities that take place long before a criminal trial are frequently critical to, even dispositive of, the accuracy and reliability of case disposition. At the same time, the regulatory touch of constitutional criminal procedure in the pretrial realm is insistently light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely reigns.

A prevailing explanation …

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Tyranny By Proxy: State Action And The Private Use Of Deadly Force, John L. Watts

Notre Dame Law Review

The Article begins in Part I with a discussion of the Supreme Court’s opinion and holding in Tennessee v. Garner. It then describes the continuing application of the fleeing felon rule to private actors despite the Court’s holding in Garner.

Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court’s early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation of powers, democratic …

Could You Use That In A Sentence, Please?: The Intersection Of Prosecutorial Ethics, Relevant Conduct Sentencing, And Criminal Rico Indictments, William S. Mcclintock

Notre Dame Law Review

This Note highlights a potential prosecutorial abuse at the intersection of RICO and the Sentencing Guidelines; specifically, how a weak RICO charge can create an unfair sentencing advantage over a defendant who is acquitted of that charge but is still convicted of at least one other count. Because this sentencing strategy involves two complex statutory frameworks, this Note requires a detailed overview of both the RICO Act and the current sentencing regime; this is necessary to clearly demonstrate how a faulty RICO indictment can be used to conceptually tie together otherwise unrelated acts and achieve an increased sentence under “relevant …

Protecting More Than The Front Page: Codifying A Reporter’S Privilege For Digital And Citizen Journalists, Kathryn A. Rosenbaum

Notre Dame Law Review

This Note will first explain, in Part I, why journalists need to be protected, and detail the history of reporters invoking a reporter’s privilege in court to protect themselves from revealing their sources or information. It will then discuss Branzburg v. Hayes in Section II.A. Section II.B briefly examines circuits’ receptivity to statutory or constitutional protections of reporters. The Supreme Court has stated that Congress could pass a law to protect reporters. However, while multiple federal shield laws have been proposed, none have been passed. The most recent proposal occurred in 2013, and as of December 2013, the Senate version …