Law Commons^™

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

Articles

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr

Articles

In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …

Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt

University of Michigan Journal of Law Reform

The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to …

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly

Michigan Journal of Race and Law

This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …

Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught In The Crossfire, William C. Kidder

Michigan Journal of Race and Law

The author concludes that Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education. The author will also argue that there is ample reason to be concerned about the harmful effects of divisive and empirically unsupported claims about APAs influencing the public debate over affirmative action, particularly in Michigan, where an anti-affirmative action initiative nearly identical to California's Proposition 209 will appear on the November 2006 ballot. …

Stories About Miranda, George C. Thomas Iii

Michigan Law Review

It is no exaggeration to say that Yale Kamisar was present at the creation of Miranda v. Arizona. To be sure, the seeds of Miranda had been sown in earlier cases, particularly Escobedo v. Illinois, but Escobedo was a Sixth Amendment right to counsel case. Professor Kamisar first saw the potential for extending the theory of Escob edo to the Fifth Amendment right against compelled self-incrimination. Escob edo theorized that a healthy criminal justice system requires that the accused know their rights and are encouraged to exercise them. The Escobedo Court read history to teach that no system …

Hardening Of The Attitudes: Americans' Views On The Death Penalty, Phoebe C. Ellsworth, Samuel R. Gross

Articles

American support for the death penalty has steadily increased since 1966, when opponents outnumbered supporters, and now in the mid-1990s is at a near record high. Research over the last 20 years has tended to confirm the hypothesis that most people’s death penalty attitudes (pro or con) are based on emotion rather than information or rational argument. People feel strongly about the death penalty, know little about it, and feel no need to know more. Factual information (e.g., about deterrence and discrimination) is generally irrelevant to people’s attitudes, and they are aware that this is so. Support for the death …

At-Large Elections And Vote Dilution: An Empirical Study, Richard A. Walawender

University of Michigan Journal of Law Reform

The 1982 amendments to the Act, however, have remained a subject of controversy. Opponents of the Act misperceive municipal at-large electoral systems, believing they provide as much minority representation as single-member district systems. This Note addresses that misperception with data showing that at large schemes provide significantly less minority representation than other schemes. The various standards used by federal courts in reviewing the constitutionality of at-large election systems are outlined in Part I. Part II sets forth an analysis of Congress's response to the judicial ambivalence toward at-large elections- the 1982 amendments to section 2 of the Voting Rights Act. …

Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick

Michigan Law Review

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …