Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 17 of 17

Full-Text Articles in Law

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz Feb 2019

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz

Faculty Publications

No abstract provided.


The Theory And Practice Of Contestatory Federalism, James A. Gardner Nov 2018

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually ...


Waiting For Justice, Jeffrey Bellin Feb 2018

Waiting For Justice, Jeffrey Bellin

Popular Media

One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts.


The Silence Penalty, Jeffrey Bellin Jan 2018

The Silence Penalty, Jeffrey Bellin

Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments—including the results of a new 400-person mock juror simulation conducted for this Article—and data from real trials. It concludes that the penalty defendants suffer ...


Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh Dec 2017

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.


The Investigative Dynamics Of The Use Of Malware By Law Enforcement, Paul Ohm Dec 2017

The Investigative Dynamics Of The Use Of Malware By Law Enforcement, Paul Ohm

William & Mary Bill of Rights Journal

The police have started to use malware—and other forms of government hacking—to solve crimes. Some fear coming abuses—the widespread use of malware when traditional investigative techniques would work just as well or to investigate political opponents or dissident speakers. This Article argues that these abuses will be checked, at least in part, by the very nature of malware and the way it must be controlled. This analysis utilizes a previously unformalized research methodology called “investigative dynamics” to come to these conclusions. Because every use of malware risks spoiling the tool—by revealing a software vulnerability that can ...


The Limits Of Prosecutorial Power, Jeffrey Bellin May 2017

The Limits Of Prosecutorial Power, Jeffrey Bellin

Popular Media

No abstract provided.


Must Be 18 Or Older: How Current Domestic Violence Policies Dismiss Teen Dating Violence, Rebecca Pensak Feb 2015

Must Be 18 Or Older: How Current Domestic Violence Policies Dismiss Teen Dating Violence, Rebecca Pensak

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


An Ntsb For Capital Punishment, Adam M. Gershowitz Oct 2014

An Ntsb For Capital Punishment, Adam M. Gershowitz

Faculty Publications

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and ...


Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz Oct 2014

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Faculty Publications

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations ...


On Hart's Category Mistake, Michael Steven Green Sep 2013

On Hart's Category Mistake, Michael Steven Green

Faculty Publications

This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s ...


I'Ll Make You A Deal: How Repeat Informants Are Corrupting The Criminal Justice System And What To Do About It, Emily Jane Dodds Dec 2008

I'Ll Make You A Deal: How Repeat Informants Are Corrupting The Criminal Justice System And What To Do About It, Emily Jane Dodds

William & Mary Law Review

No abstract provided.


A Strategy For Mercy, Robert L. Misner Apr 2000

A Strategy For Mercy, Robert L. Misner

William & Mary Law Review

No abstract provided.


The Dead End Of Deterrence, And Beyond, Kyron Huigens Mar 2000

The Dead End Of Deterrence, And Beyond, Kyron Huigens

William & Mary Law Review

No abstract provided.


A Constitutional Charge And A Comparative Vision To Substantially Expand And Subject Matter Specialize The Federal Judiciary: A Preliminary Blueprint For Remodeling Our National Houses Of Justice And Establishing A Separate System Of Federal Criminal Courts, Victor Williams Feb 1996

A Constitutional Charge And A Comparative Vision To Substantially Expand And Subject Matter Specialize The Federal Judiciary: A Preliminary Blueprint For Remodeling Our National Houses Of Justice And Establishing A Separate System Of Federal Criminal Courts, Victor Williams

William & Mary Law Review

No abstract provided.


Silence As A Moral And Constitutional Right, R. Kent Greenawalt Oct 1981

Silence As A Moral And Constitutional Right, R. Kent Greenawalt

William & Mary Law Review

No abstract provided.


Andenaes And The Theory Of Deterence, Larry I. Palmer Jan 1975

Andenaes And The Theory Of Deterence, Larry I. Palmer

Faculty Publications

No abstract provided.