Law Commons^™

A Good Name: Applying Regulatory Takings Analysis To Reputation Damage Caused By Criminal History, Jamila Jefferson-Jones

West Virginia Law Review

No abstract provided.

The Wrong Kind Of Innocence: Why United States V. Begay Warrants The Extension Of "Actual Innocence" To Exclude Erroneous, Non-Capital Sentences, Greg Siepel

West Virginia Law Review

No abstract provided.

Aiding The Enemy Or Promoting Democracy? Defining The Rights Of Journalists And Whistleblowers To Disclose National Security Information, Candice M. Kines

West Virginia Law Review

No abstract provided.

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Teaching 'The Wire': Fiction As Pedagogical Tool, Roger Fairfax

Presentations

No abstract provided.

An Exaggerated Response: Possible Reactions To Florence V. Board Of Chosen Freeholders In South Carolina, Kara S. Grevey

South Carolina Law Review

No abstract provided.

The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas

All Faculty Scholarship

This essay, written for a symposium at Duquesne Law School entitled Plea Bargaining After Lafler and Frye, offers thoughts on how lawyers could learn from doctors’ experience in catching and preventing medical errors and aviation experts’ learning from airplane crashes and near misses. It also expresses skepticism about the efficacy of judges’ ex post review of ineffective assistance of counsel, but holds out more hope that public-defender organizations, bar associations, probation officers, sentencing judges, sentencing commissions, and line and supervisory prosecutors can do much more to prevent misunderstanding and remedy ineffective bargaining advice in the first place.

Searching For Solutions To The Indigent Defense Crisis In The Broader Criminal Justice Reform Agenda, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, …

The Right Of The Prosecutor To Advance Notice Of The Defendant's Alibi Defense , Thomas J. Hickey

Pepperdine Law Review

No abstract provided.

The California Constitution And Counsel At Pretrial Lineups: Disneyland Claims Or Deadly Serious Business? , John Moravek

Pepperdine Law Review

No abstract provided.

Murguia V. Municipal Court - The Defense Of Discriminatory Prosecution, Jeffrey L. Garland

Pepperdine Law Review

No abstract provided.

The Pre-Arraignment Lineup: Necessity Of A Magistrate, Harry M. Caldwell, Douglas S. Smith

Pepperdine Law Review

No abstract provided.

Discovery By The Prosecution In Criminal Cases: Prudhomme Reconsidered , Jon R. Rolefson

Pepperdine Law Review

No abstract provided.

Limiting The Use Of Prior Felony Convictions To Impeach A Defendant - Witness In California Criminal Proceedings, Richard E. Boehm

Pepperdine Law Review

No abstract provided.

Mens Rea, Due Process And The Burden Of Proving Sanity Or Insanity, Daniel K. Spradlin

Pepperdine Law Review

No abstract provided.

Vol. 4 No. 2, Spring 2013; The “Cowardly Counsel” Exception: Eliminating The Contemporaneous Objection Rule, Elizabeth George

Northern Illinois Law Review Supplement

The contemporaneous objection rule is very clear and precise in its application. However, as the law stands in the Ninth Circuit, failure to contemporaneously object coupled with any mention of race by the sentencing judge is automatic grounds for resentencing. This article explores the origins of this exception to the contemporaneous objection rule. Next, it explores why these statements constitute harmless error on the part of the trial court. Finally, it explains why this “cowardly counsel” exception could have potentially devastating effects to the policies that underlie the contemporaneous objection rule.

Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Time-Bars: Rico-Criminal And Civil Federal And State, G. Robert Blakey

Notre Dame Law Review

The article discusses the role of the Racketeer Influenced and Corrupt Organizations Act (RICO) in criminal proceedings. The Act considers several provisions including illegal services of drugs and gambling, corruption in labor or management relations, and commercial fraud such as bankruptcy and securities fraud. The Act applies criminal and civil sanctions including fines and imprisonment, forfeiture, and treble damage relief for persons who injured in business due to violation of law.

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

Overcharging, Kyle Graham

Faculty Publications

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various …

Full Court Press: The Imperial Judiciary Vs. The Paranoid Press , Francis I. Dale, Mitchell W. Dale

Pepperdine Law Review

No abstract provided.

Drug Use And The Exclusionary Manque, Jerome A. Busch

Pepperdine Law Review

No abstract provided.

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 …

Bulk Misdemeanor Justice, Stephanos Bibas

All Faculty Scholarship

This short essay responds to Alexandra Natapoff’s article Misdemeanors, which shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. The prime culprit in Natapoff’s story is the hidden, informal discretion that police officers enjoy to arrest, charge, and effect convictions, abetted by prosecutors’ and judges’ abdication and defense counsel’s absence or impotence. The roots of the problem she identifies, I argue, go all the way down to the system’s professionalization and mechanization. Given the magnitude of the problem, Natapoff’s solutions are surprisingly half-hearted, masking the deeper structural problems that demand …

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Mark A. Drumbl

No abstract provided.

The Relational Nature Of Privacy, Laurent Sacharoff

Laurent Sacharoff

The New State Postconviction, Giovanna Shay

Faculty Scholarship

This Article examines two October Term 2011 Supreme Court cases – Maples v. Thomas and Martinez v. Ryan – which have a significant impact on the provision of counsel in state postconviction proceedings. In Maples and Martinez the Court expanded the circumstances in which deficient performance by state postconviction counsel can overcome procedural default, to permit the prisoner to litigate defaulted claims on the merits in federal habeas. The Author argues that, given the increased significance of state postconviction under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Maples and Martinez could have a salutary effect on the development of …

Unrepresented And Untimely: The Pcra's Disservice To Indigent Prisoners, Nathan Margioni

Utah OnLaw: The Utah Law Review Online Supplement

The Post-Conviction Remedies Act’s fundamental flaw is its effect on the availability of relief to indigent prisoners. A post-conviction review is often a prisoner’s only opportunity to challenge the failure of appellate counsel to provide effective assistance. Because the legislature has eliminated the common law writ of habeas corpus as a method to challenge a conviction or sentence, the PCRA is the only available avenue for a post-conviction review. The indigent defendant, however, is particularly vulnerable to the PCRA’s restrictions, due to his or her reliance on appointed rather than private counsel during the appeals phase, and lack of resources …