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Articles 1 - 30 of 51
Full-Text Articles in Law
The Languishing Public Safety Doctrine, Brian Gallini
The Languishing Public Safety Doctrine, Brian Gallini
School of Law Faculty Publications and Presentations
Every semester, law students across the country read New York v. Quarles in criminal procedure. The Supreme Court’s 1984 decision in Quarles established the public safety exception—the first and only exception to the requirements of Miranda v. Arizona. But at the time of Quarles’s issuance, no one could have predicted just how long it would sit untouched by the Supreme Court. Application of Quarles to high profile defendants like James Holmes and Dzhokhar Tsarnaev illustrate the need for more clarity in the context of applying the public safety exception.Mores specifically, those cases demonstrate why the Supreme Court needs to re-examine …
Baseball Mascots And The Law, Howard Brill
Baseball Mascots And The Law, Howard Brill
School of Law Faculty Publications and Presentations
No abstract provided.
Ferguson, Fisher, And The Future: Diversity And Inclusion As A Remedy For Implicit Racial Bias, Ann Killenbeck
Ferguson, Fisher, And The Future: Diversity And Inclusion As A Remedy For Implicit Racial Bias, Ann Killenbeck
School of Law Faculty Publications and Presentations
This article examines a number of key issues posed by the Supreme Court's recent decision to once again examine the constitutionality of the affirmative admissions system used by the University of Texas at Austin. Its focus is, however, not on the constitutionality of racial preferences, but rather on the obligations imposed on institutions that use such preferences. The article makes two unique contributions to the literature. First, it notes and discusses the role of implicit bias in the current American political and social scene and connects implicit bias to the affirmative action debate. Second, it focuses on legal education as …
The Historical Case For Abandoning Strickland, Brian Gallini
The Historical Case For Abandoning Strickland, Brian Gallini
School of Law Faculty Publications and Presentations
Even the Justices considering Strickland v. Washington knew. “[T]his is a big case,” Justice Powell handwrote on the first page of his law clerk’s bench memorandum. Although designed to provide the Sixth Amendment benchmark for effective defense attorney representation, Strickland was an utter failure. Courts nationwide have relied on Strickland to uphold as constitutional criminal defense attorney conduct that includes sleeping through portions of trial, remaining completely silent during the proceedings, mental illness, alcohol use, and drug use - among other troubling examples. The bench, bar, and scholars alike have therefore uniformly proposed reforming the Strickland standard.But no article has …
The Unlikely Meeting Between Dzhokhar Tsarnaev And Benjamin Quarles, Brian Gallini
The Unlikely Meeting Between Dzhokhar Tsarnaev And Benjamin Quarles, Brian Gallini
School of Law Faculty Publications and Presentations
Everyone reads New York v. Quarles in law school. The Supreme Court’s 1984 decision in Quarles established the public safety exception—the first and only exception to the requirements of Miranda v. Arizona. But at the time of Quarles’s issuance, no one could have predicted just how big and forgiving the exception would become. Whereas the defendant in Quarles provided a single response to a single law enforcement question while in custody immediately following his arrest, one of the two 2013 Marathon Bombers, Dzhokhar Tsarnaev, had a dramatically different experience. Four days after the April 15, 2013, Marathon Bombing, Tsarnaev was …
Nuremberg Lives On: How Justice Jackson's International Experience Continues To Shape Domestic Criminal Procedure, Brian Gallini
Nuremberg Lives On: How Justice Jackson's International Experience Continues To Shape Domestic Criminal Procedure, Brian Gallini
School of Law Faculty Publications and Presentations
The end of Germany’s participation in World War II came with its formal surrender on May 8, 1945. After extensive debate over what would become of top Nazi leaders, twenty-two Nazi defendants were tried and nineteen were ultimately convicted after 216 days of trials held in Nuremberg spread across eleven months between November 1945 and 1946. Associate Supreme Court Justice Robert H. Jackson took a leave of absence from the Court to lead the trial’s prosecutorial effort. Decades of scholarship have considered and evaluated the Nuremberg trials alongside Jackson’s role in them. But no article has evaluated how Justice Jackson’s …
Hbo’S The Wire And Criminal Procedure: A Match Made In Heaven, Brian Gallini
Hbo’S The Wire And Criminal Procedure: A Match Made In Heaven, Brian Gallini
School of Law Faculty Publications and Presentations
Fans of The Wire know Bunk. Those fans who are legal minded may even remember, in the first scene of the first episode of Season 5, when Bunk masterfully interrogates a helpless suspect. I cannot imagine a better introduction to the Fifth Amendment materials in the Criminal Procedure course.But The Wire’s five seasons offer more than just helpful scenes. Rather, the show raises a diverse array of Fourth and Fifth Amendment issues that, I believe, can assist in teaching the Criminal Procedure course throughout the semester by keying all the course’s topics to The Wire. I proceed in this piece …
Teaching Federal Criminal Law: Survey Says . . . “It’S Hard”, Brian Gallini
Teaching Federal Criminal Law: Survey Says . . . “It’S Hard”, Brian Gallini
School of Law Faculty Publications and Presentations
Teaching Federal Criminal Law is challenging. In this essay, I offer some brief thoughts to combat difficulties with teaching the course. I proceed specifically by offering for your consideration some observations on (1) what to cover in the course, (2) how to keep the material interesting, and (3) some closing considerations.
Does Proving Predicate Offenses In Arkansas Require Proof Beyond A Reasonable Doubt?, Brian Gallini, Britta Stamps
Does Proving Predicate Offenses In Arkansas Require Proof Beyond A Reasonable Doubt?, Brian Gallini, Britta Stamps
School of Law Faculty Publications and Presentations
Gangs in Arkansas became an increasing problem in the 1990s. A 1994 HBO-produced documentary titled Gang War: Bangin’ in Little Rock confirmed as much by taking viewers inside the death and destruction caused by warring gang factions. In response to the problem, the Arkansas legislature enacted the Arkansas Criminal Gang, Organization, or Enterprise Act. This Article argues that the Arkansas Supreme Court’s interpretation of the phrase “predicate criminal offense” in that Act violates the due process clause by allowing the prosecution to prove a substantive criminal offense using a burden of proof below reasonable doubt. Part I briefly discusses the …
Rethinking Schneckloth V. Bustamonte, Brian Gallini
Rethinking Schneckloth V. Bustamonte, Brian Gallini
School of Law Faculty Publications and Presentations
Why provide warnings to criminal suspects subject to custodial interrogation, but decline to require that citizens be informed of their right to refuse consent? And a related question: why did the Schneckloth majority opinion’s author, Justice Stewart, go so far as to assert that administering a right to refuse consent warning would be “thoroughly impractical”? This piece argues that Schneckloth should be overruled in light of dramatic changes in politics and our factual understanding of consent searches.
From Philly To Fayetteville: Reflections On Teaching Criminal Law In The First Year...Four Years Later, Brian Gallini
From Philly To Fayetteville: Reflections On Teaching Criminal Law In The First Year...Four Years Later, Brian Gallini
School of Law Faculty Publications and Presentations
This piece briefly explores the Criminal Law course and specifically reflects on my experience teaching the course over the past four years. Readers of this piece might first enjoy reading this piece's predecessor at 83 Temp. L. Rev. 475.
Bringing Down A Legend: How Pennsylvania’S Investigating Grand Jury Ended Joe Paterno’S Career, Brian Gallini
Bringing Down A Legend: How Pennsylvania’S Investigating Grand Jury Ended Joe Paterno’S Career, Brian Gallini
School of Law Faculty Publications and Presentations
A grand jury “presentment” is a document that reflects the results of an investigatory grand jury’s investigation. Abandoned by the federal system in 1946, several states continue to rely on presentments in their grand jury practice. One such state is Pennsylvania.On November 5, 2011, a Pennsylvania investigating grand jury issued a presentment targeted toward former Penn State assistant football coach, Jerry Sandusky. The twenty-three-page document was released to the public on the same day and, in it, the presentment included a handful of statements relevant to former Penn State head football coach Joe Paterno. Although Paterno was not the subject …
Take Me Out To The Hearing: Major League Baseball Players Before Congress, Howard Brill
Take Me Out To The Hearing: Major League Baseball Players Before Congress, Howard Brill
School of Law Faculty Publications and Presentations
No abstract provided.
Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini
Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini
School of Law Faculty Publications and Presentations
The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the …
To Serve And Protect? Officers As Expert Witnesses In Federal Drug Prosecutions, Brian Gallini
To Serve And Protect? Officers As Expert Witnesses In Federal Drug Prosecutions, Brian Gallini
School of Law Faculty Publications and Presentations
A competent United States Attorney should easily win any federal drug case. The elements of federal drug crimes are easy to prove, easy to explain, and easy for juries to comprehend. Why then does the government need members of law enforcement to testify as experts in federal drug prosecutions? The answer: they do not. Yet district courts routinely admit (and appellate courts uphold) expert agent and officer testimony on a wide array of drug topics—including when officers testify both as expert and lay witnesses. Were the examples of law enforcement expert testimony few, perhaps no problem would arise. But this …
Campaign Contributions, Campaign Involvement, And Judicial Recusal, Howard Brill
Campaign Contributions, Campaign Involvement, And Judicial Recusal, Howard Brill
School of Law Faculty Publications and Presentations
In Arkansas, we elect judges, and all indications are that we will continue to do so. Attempts to change to some variation of a merit-selection plan have been rejected. The proposed Constitution of 1970 included a partial merit-selection plan. This Constitution was soundly rejected by the people. Although the merit-selection plan was not the determining factor in the defeat, it certainly did not generate popular support. Accordingly, the proposed Constitution of 1980 simply asked the people to later vote on whether to have a judiciary selected by merit. But the entire Constitution again failed. Despite calls for a merit-selection plan, …
Car Stops, Borders, And Profiling: The Hunt For Undocumented (Illegal?) Immigrants In Border Towns, Brian Gallini, Elizabeth Young
Car Stops, Borders, And Profiling: The Hunt For Undocumented (Illegal?) Immigrants In Border Towns, Brian Gallini, Elizabeth Young
School of Law Faculty Publications and Presentations
The much-discussed Arizona immigration statute, SB 1070, continues an effort—this time at the legislative level—to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all the critics been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice—racial and ethnic profiling premised on “reasonable suspicion”—that has incited the emotions of so many citizens nationwide.This Article therefore argues that the Arizona’s SB 1070, while notable for the public response to it, is merely emblematic of a much larger and systemic …
Police “Science” In The Interrogation Room: Seventy Years Of Pseudo-Psychological Interrogation Methods To Obtain Inadmissible Confessions, Brian Gallini
School of Law Faculty Publications and Presentations
Nearly all confessions obtained by interrogators nationwide are inadmissible, but nonetheless admitted. In the process, police arrest the wrong suspect and allow the guilty to go free. An unshakeable addiction to pseudo-scientific interrogation methods – initially created in the 1940s – is to blame. The so-called “Reid technique” of interrogation was initially a welcome and revolutionary change from the violent “third degree” method it replaced. But, we no longer live in the 1940s and, not surprisingly, we no longer drive 1940s automobiles, practice early twentieth century medicine, or dial rotary phones. Why, then, are police still using 1940s methods of …
The Devil Is In The Lack Of Details, Ann Killenbeck
The Devil Is In The Lack Of Details, Ann Killenbeck
School of Law Faculty Publications and Presentations
In an interesting and potentially important article, Professor Deirdre M. Bowen declares that her goal "is to scrutinize what happens when the judiciary and anti-affirmative action activist groups exploit color blindness to rationalize away affirmative action admissions policies."' She argues that her research and her study demonstrate that "reactionary 'color blindness' does not actually show that "affirmative action is no longer necessary." Instead, she believes the results of her study establish that anti-affirmative action forces have embraced an "ideal [that] does not appear to exist" and are "promoting a deeply flawed discourse [by asserting] that affirmative action causes stigma."My emphasis …
Help Wanted: Seeking One Good Appellate Brief That Forces The Arkansas Supreme Court To Clarify Its Criminal Discovery Jurisprudence, Brian Gallini
Help Wanted: Seeking One Good Appellate Brief That Forces The Arkansas Supreme Court To Clarify Its Criminal Discovery Jurisprudence, Brian Gallini
School of Law Faculty Publications and Presentations
This Essay first argues that Arkansas has yet to conclusively articulate when a prosecutorial suppression of evidence in response to defense counsel's discovery request violates either the federal or state due process clauses, or the state rules of criminal procedure. More importantly, however, this Essay contends that the Arkansas Supreme Court should require prosecutors to turn over all statements in response to a specific discovery request even if those statements are only arguably “material” and “favorable to the accused.” Doing so would provide to defendants more protection pursuant to the Arkansas Constitution than they now enjoy under the Federal Constitution.Part …
From Philly To Fayetteville: Reflections On Teaching Criminal Law In The First Year, Brian Gallini
From Philly To Fayetteville: Reflections On Teaching Criminal Law In The First Year, Brian Gallini
School of Law Faculty Publications and Presentations
How exactly should we teach the first-year criminal law course? How many credits should the course receive? What should go in the syllabus? How much of what is in the syllabus must be covered? In this essay, I humbly offer some thoughts – from the “newbie’s” standpoint – for your consideration in response to each of these questions. I conclude with some limited comments (reminders?) directed gently to my senior colleagues about teaching this generation of first-year law students.
Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini
Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini
School of Law Faculty Publications and Presentations
No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This Essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution. Part I highlights certain features of the statute and explores the rationale underlying its enactment. Part II discusses the only published decision upholding the practice of taking of DNA samples from certain …
Driving Through Arkansas? Have Your Dna Sample Ready, Brian Gallini
Driving Through Arkansas? Have Your Dna Sample Ready, Brian Gallini
School of Law Faculty Publications and Presentations
No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This brief essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution.
The Arkansas Code Of Judicial Conduct Of 2009, Howard Brill
The Arkansas Code Of Judicial Conduct Of 2009, Howard Brill
School of Law Faculty Publications and Presentations
With its Per Curiam Order of April 23, 2009, the Supreme Court brought closure to a two year process, and adopted a new Code of Judicial Conduct, effective July 1, 2009. The Code, no binding on all Arkansas judges and judicial candidates, is the third Code to provide guidance and a basis for discipline. The Code, the result of 18 months of work, is strikingly different in its format from the predecessor, but markedly little changed from the substance of the prior Code.
Bakke, With Teeth?: The Implications Of Grutter V. Bollinger In An Outcomes-Based World, Ann Killenbeck
Bakke, With Teeth?: The Implications Of Grutter V. Bollinger In An Outcomes-Based World, Ann Killenbeck
School of Law Faculty Publications and Presentations
The article focuses on the issue concerning the debate on affirmative action and diversity rationale among colleges and universities in the U.S. It examines the diversity at the University of Michigan in the light of the two cases slated, Grutter v. Bollinger and Gratz v. Bollinger, concerning its admission policies. It also discusses the implications and consequences accompanied in adopting specific educational policies. Also, it highlights the value of social sciences that drive these issues.
Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini
School of Law Faculty Publications and Presentations
No court has addressed the constitutional significance of sentencing juvenile murder accomplices who play a minimal role in the underlying killing to life in prison without parole. Indeed, no precedent makes clear whether it is cruel and unusual to impose that sentence on juvenile offenders convicted of first-degree murder pursuant to either the felony-murder doctrine or an accomplice theory of liability, notwithstanding their minimal involvement in the victim’s death. To investigate this unanswered question, Part I of this Article explores the imposition of life without parole sentences on juvenile non-killers convicted of murder via either the felony-murder doctrine or accomplice …
Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian Gallini
Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian Gallini
School of Law Faculty Publications and Presentations
The Article first provides an overview of the history and prevailing motivations behind the promulgation of the Federal Sentencing Guidelines. Then, using the U.S. Court of Appeals for the Sixth Circuit as an illustrative example, the Article contends that, notwithstanding the supposed “far-reaching” implications of both Blakely and Booker, the judiciary's continued reliance on the “advisory” Guidelines has practically changed federal sentencing procedures very little in form or function. For a contrasting response to Booker, the Article thereafter examines the State of Maine's sentencing scheme and its response to the Supreme Court's Booker/Blakely decisions. By arguing that Maine's sentencing procedure …
"For Such A Time As This": Bible Versus For Law School Deans, Howard Brill
"For Such A Time As This": Bible Versus For Law School Deans, Howard Brill
School of Law Faculty Publications and Presentations
No abstract provided.
Arkansas Law Of Damages, Fifth Edition, Chapter 30: Real Property, Howard Brill
Arkansas Law Of Damages, Fifth Edition, Chapter 30: Real Property, Howard Brill
School of Law Faculty Publications and Presentations
This is an excerpt from Professor Brill's book on Arkansas Law of Damages.
Equity And Criminal Law, Howard Brill
Equity And Criminal Law, Howard Brill
School of Law Faculty Publications and Presentations
The relationship between courts of equity and the criminal law in Arkansas is laid out by two black letter rules: (1) equity will not enjoin a criminal prosecution, and (2) equity will not enjoin a crime. The basis of both rules is that equity should not intervene in criminal courts, unless no other remedy in the court of law exists. However, the exceptions allowed for each rule are different. Exceptions to the first rule include: cases involving property rights, multiple prosecutions, unlawful exactions, or prosecutions made in bad faith. The second rule allows for an exception when a criminal punishment …