Law Commons^™

Law, Fact, And Procedural Justice, G. Alexander Nunn

Faculty Scholarship

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

From The Legal Literature: Automating Police, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection …

Linked Fate: Justice And The Criminal Legal System During The Covid-19 Pandemic, Susan P. Sturm, Faiz Pirani, Hyun Kim, Natalie Behr, Zachary D. Hardwick

Faculty Scholarship

The concept of “linked fate” has taken on new meaning in the face of the COVID-19 pandemic. People all over the world – from every walk of life, spanning class, race, gender, and nationality – face a potentially deadly threat requiring cooperation and sacrifice. The plight of the most vulnerable among us affects the capacity of the larger community to cope with, recover, and learn from COVID-19’s devastating impact. COVID-19 makes visible and urgent the need to embrace our linked fate, “develop a sense of commonality and shared circumstances,” and unstick dysfunctional and inequitable political and legal systems.

Nowhere is …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

The Present Crisis In American Bail, Kellen R. Funk

Faculty Scholarship

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …

Judicious Imprisonment, Gregory Jay Hall

All Faculty Scholarship

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

The Systems Fallacy: A Genealogy And Critique Of Public Policy And Cost-Benefit Analysis, Bernard Harcourt

Faculty Scholarship

This essay identifies the systems fallacy: the mistaken belief that systems-analytic decision-making techniques, such as cost-benefit or public policy analysis, are neutral and objective, when in fact they normatively shape political outcomes. The systems fallacy is the mistaken belief that there could be a nonnormative or scientific way to analyze and implement public policy that would not affect political values. That pretense is mistaken because the very act of conceptualizing and defining a metaphorical system, and the accompanying choice-of-scope decisions, constitute inherently normative decisions that are value laden and political in nature. The ambition of decision theorists to render policy …

Terry V. Ohio And The (Un)Forgettable Frisk, Seth W. Stoughton

Faculty Publications

No abstract provided.

Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg

Faculty Publications

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection …

Newsroom: Kuckes On Grand Jury Secrecy 8/30/2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers

Faculty Scholarship

No abstract provided.

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Journal Articles

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson

Law Faculty Scholarly Articles

The purpose of this article is to engage in some analysis and discussion of the part of this sentencing law that cries out loudest for reform (the state's persistent felony offender law), reform that in short order would begin to deflate the population that has our prisons and jails grossly overcrowded. In this analysis and discussion, there is some brief consideration of the justifications used to support repeat offender laws (Part I), a segment on the history and evolution of Kentucky's law (Part II), an examination of a selection of repeat offender laws from other states (Part III), a report …

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Allocution For Victims Of Economic Crimes, Jayne W. Barnard

Faculty Publications

No abstract provided.

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

Faculty Publications

In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the …

State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), includes Biographical Information on the Participants in the Case; and transcripts of the complete pretrial and trial proceedings in the 1964 criminal prosecutions of Richard Chilton and John Terry, arranged by Prof. Barrett to create the organization reflected in the Table of Contents at the beginning of the appendix. Footnotes were added to provide citations and, in a few instances, to clarify the text. Bracketed material was added to correct obvious slips of the tongue or the …

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

Disparate Effects In The Criminal Justice System: A Response To Randall Kennedy's Comment, Janai S. Nelson

Faculty Publications

For many African Americans, the criminal justice system symbolizes an oppressive force, and yet, is a necessary institution in an increasingly lawless society. African Americans are at the same time its victims and beneficiaries, although various sentiments exist regarding the extent to which they are either. It is precisely this paradox, coupled with the promulgation of certain criminal legislation and legal precedent which directly and, potentially, adversely affect the African-American community that inspired the author to address the issues and arguments raised in Randall Kennedy's The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994), …

The Hearsay Exception For Public Records In Federal Criminal Trials, Vincent C. Alexander

Faculty Publications

The hearsay exception for "public records" was recognized at common law and has been further developed in most jurisdictions by statute. The reliability of public records is said to derive from the presumption of regularity and accuracy that attends the recording of events by public officials. As with the hearsay exception for recordsmade in the regular course of a private business, the reliability of many public records is enhanced by the routine and repetitive circumstancesunder which such records are made. An additional justificationfor the admission of public records is public convenience: If government employees are continually required to testify in …

Kentucky Law Survey: Criminal Rules, William H. Fortune

Law Faculty Scholarly Articles

In May 1978 the Kentucky Supreme Court set up a Criminal Rules Revision Committee (Advisory Committee) to study Kentucky's Rules of Criminal Procedure. The purpose of the Advisory Committee was to make recommendations to the Judicial Council. The committee met sixteen times between July 1978 and July 1980, and at the conclusion of its study, submitted a comprehensive revision of the rules of criminal procedure to the judicial council. These proposed revisions went beyond mere amendment of the existing rules. The Advisory Committee drew heavily from the Federal Rules of Criminal Procedure, and ultimately proposed extensive changes in plea bargaining, …

A Look At Florida's Proposed Code Of Evidence, Charles W. Ehrhardt

Scholarly Publications

The law of evidence had been codified in three states, California, New Jersey and Kansas, prior to the United States Supreme Court's promulgation of the Proposed Federal Rules of Evidence. The submission of the rules to the Congress, and their approval, as amended, by the House of Representatives served as the catalyst for renewed interest in evidence codification. Three states have recently adopted comprehensive Rules of Evidence that closely parallel the Proposed Federal Rules, and at least four other states, including Florida, have drafted or are actively considering the adoption of such a codification. During the 1974 session of the …