Law Commons^™

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

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This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group

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In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors …

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

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This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni

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Intransitive choices, or cycling, are generally held to be the mark of irrationality. When a set of rules engenders such choices, it is usually held to be irrational and in need of reform. In this article, we prove a series of theorems, demonstrating that all feasible legal regimes are going to be rife with cycling. Our first result, the legal cycling theorem, shows that unless a legal system meets some extremely restrictive conditions, it will lead to cycling. The discussion that follows, along with our second result, the combination theorem, shows exactly why these conditions are almost impossible to meet. …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

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This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …

Strict Liability's Criminogenic Effect, Paul H. Robinson

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It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

Root Cause Analysis: A Tool To Promote Officer Safety And Reduce Officer Involved Shootings Over Time, John Hollway, Calvin Lee, Sean Smoot

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This Article proposes the use of Root Cause Analysis (RCA) as a tool for reducing or preventing officer-involved shootings (OIS). RCA is a method of problem solving designed to identify core underlying factors that contributed to generate an undesirable outcome, organizational accident, or adverse event. Once these core underlying causative factors have been identified, participants in the system can fashion remedies that will prevent future occurrences of similar undesirable outcomes. RCA is part of a prospective, non-blaming “systems approach” to preventing error in complex human systems that has been successfully used to reduce errors in aviation, healthcare, manufacturing, nuclear power, …

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

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In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are …

Addiction, Choice And Criminal Law, Stephen J. Morse

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This chapter is a contribution to a volume, Addiction and Choice, edited by Nick Heather and Gabriel Segal that is forthcoming from Oxford University Press. Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; yet others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

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Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

Bridging The Gap: A Joint Negotiation Project Crossing Legal Disciplines, K. E. Powell, Lauren Bartlett

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This article discusses the creation and implementation of a cross-discipline negotiation simulation project designed by two law professors at Ohio Northern University Claude W. Pettit College of Law. The project bridged the gap between podium classes and clinical experience, exposing two separate groups of students to new subject areas. Professors Lauren E. Bartlett and Karen Powell brought together two distinct law classes, one doctrinal tax class and one pretrial litigation skills class, to exercise legal skills, and learn substantive and procedural law from their classmates, while acting as an attorney or a client in a simulated negotiation.

A Comparison Of Defendants With Mental Illness Represented By Public Defenders And Private Attorneys: An Analysis Of Court-Ordered Pretrial Psychiatric Evaluations, Donald M. Linhorst, P. Ann Dirks-Lindhorst, Susan Mcgraugh, Lauren Choate, Sarah Riley

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This study compared the characteristics and court-ordered evaluation questions and responses among 4,430 defendants to determine if differences existed between those represented by public defenders and private attorneys when receiving trial competency or responsibility psychiatric evaluations from a state department of mental health. Defendants represented by public defenders were more likely to be younger, to have less education, to have psychotic disorders, to have a history of inpatient psychiatric treatment, to live in urban or rural counties, and to be jailed at the time of the evaluation. In addition, defendants represented by public defenders were less likely to have a …

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

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The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of …

Democratizing Criminal Law As An Abolitionist Project, Dorothy E. Roberts

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The criminal justice system currently functions to exclude black people from full political participation. Myriad institutions, laws, and definitions within the criminal justice system subordinate and criminalize black people, thereby excluding them from electoral politics, and depriving them of material resources, social networks, family relationships, and legitimacy necessary for full political citizenship. Making criminal law democratic requires more than reform efforts to improve currently existing procedures and systems. Rather, it requires an abolitionist approach that will dismantle the criminal law’s anti-democratic aspects entirely and reconstitute the criminal justice system without them.