Law Commons^™

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

Benevolent Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity …

Close Encounters: A Feminist Legal Theory Analysis Of The State Treatment Of Female Child Sexual Abuse Victims, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This article explores the way in which the law currently deals with sexual violence against female children in the home – evaluating the ways in which the state has access to the private realm of the family and the ways in which civil and criminal legal systems deal with this type of trauma to girls across a spectrum of time. Research shows that the child protection system only captures a small percentage of sexual abuse right after it happens. However, research also shows that female child sex abuse survivors appear in statistically significant numbers among other groups – drug and …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …

Spatial Legality, Due Process, And Choice Of Law In Human Rights Litigation Under U.S. State Law, Anthony J. Colangelo, Kristina Kiik

Faculty Journal Articles and Book Chapters

Framing the topic of this symposium as “Human Rights Litigation in State Courts and Under State Law” effectively orients the discussion around the rights of plaintiffs from the outset, the central question being whether they have enforceable rights in U.S. state courts under state law. Standing in the way are various legal doctrines. In broad strokes, the relevant questions become: Which doctrines do, or should, either facilitate or obstruct human rights litigation in U.S. state courts and under state law? How are courts applying these doctrines? How should courts apply these doctrines?

Many of the doctrines that potentially stand in …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron

Faculty Journal Articles and Book Chapters

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Law, Facts, And Power, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …

A Prolonged Slump For ‘Plaintiff-Pitchers’: The Narrow ‘Strike Zone’ For Securities Plaintiffs In The Fourth Circuit, Marc I. Steinberg, Dustin Appel

Faculty Journal Articles and Book Chapters

This article focuses on the narrow “strike zone” that plaintiffs must overcome in private securities actions instituted in the Fourth Circuit. Based on empirical data generated over a fourteen-year span, there emerges a clear finding that during that time period defendants were victorious in almost all cases, either on the merits of the case or due to procedural obstacles. The authors posit that this pattern of difficulty for plaintiffs arises, at least in part, from the Fourth Circuit’s restrictive interpretation of various requisite elements of these causes of action, such as materiality and scienter, as well as the Fourth Circuit’s …

Saving Civil Justice: Judging Civil Justice, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

No abstract provided.

Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks

Faculty Journal Articles and Book Chapters

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …

Transnational Networks And International Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The theory of trans-governmental networks describes how elements within the governments of various nations make and affect policy by coordinating with each other informally, without official or formal legal sanction. Anne-Marie Slaughter and others have argued that this sort of coordination is useful in many different areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law.

One area to which the theory has not yet been applied is international criminal law. By its nature, international criminal law transcends national boundaries. But at least until recently, it had not generated the kinds of informal trans-governmental networks that have emerged …

The Supreme Court And Voting Rights: A More Complete Exit Strategy, Grant M. Hayden

Faculty Journal Articles and Book Chapters

To the great relief of many observers, the Supreme Court has recently become more deferential to state legislatures with respect to their political redistricting plans. The only problem is that the Court appears to be in no mood to revisit some of the cases that got it entangled in the political thicket to begin with - the ones rigorously applying the one person, one vote standard. Indeed, it recently issued a summary affirmance of a lower court decision that tightened up its already exacting standards regarding population equality. As a result, the Court's partial retreat from politics is doing more …

Resurrecting Comity: Revisiting The Problem Of Non-Uniform Marriage Laws, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place.

Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would …

Women's Jury Service: Right Of Citizenship Or Privilege Of Difference?, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The Supreme Court recently declared that peremptory challenges based on sex, like those based on race, violate the Equal Protection Clause of the Fourteenth Amendment. In this note, Joanna Grossman argues that the Court has finally established the right of women to serve on juries. Women's rights advocates had fought for this right for more than a century, but courts refused to recognize that women were harmed by exclusion from juries and denied any connection between women's jury service and citizenship. Instead, courts focused on gender difference and only eliminated legal barriers to women's jury service when it was necessary …

Litigating The Zero-Sum Game: The Effect Of Institutional Reform Litigation On Absent Parties, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court's interest balancing is flawed in systemic ways that result in overvaluing non-party interests.