Law Commons^™

Temporal Arbitrariness: A Back To The Future Look At A Twenty-Five-Year-Old Death Penalty Trial, Mary Kelly Tate

Law Faculty Publications

his essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration …

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

All Faculty Scholarship

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

Sonic Jihad — Muslim Hip Hop In The Age Of Mass Incarceration, Spearit

Articles

This essay examines hip hop music as a form of legal criticism. It focuses on the music as critical resistance and “new terrain” for understanding the law, and more specifically, focuses on what prisons mean to Muslim hip hop artists. Losing friends, family, and loved ones to the proverbial belly of the beast has inspired criticism of criminal justice from the earliest days of hip hop culture. In the music, prisons are known by a host of names like “pen,” “bing,” and “clink,” terms that are invoked throughout the lyrics. The most extreme expressions offer violent fantasies of revolution and …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

The Implementation Of Judicial Policy In Crime Laboratories : An Examination Of The Impact Of Melendez-Diaz V. Massachusetts, Catherine L. Bonventre

Legacy Theses & Dissertations (2009 - 2024)

In Melendez-Diaz v. Massachusetts (2009), the United States Supreme Court held that the Sixth Amendment right to confront adverse witnesses includes the right to confront forensic analysts who produce affidavits certifying the results of forensic examinations used against defendants at trial. The decision thus invalidated the practice of substituting forensic laboratory reports for live testimony in criminal trials. Melendez-Diaz was a divided decision in which four dissenting Justices predicted onerous practical consequences for the practice of forensic science in the United States. Through a web-based survey and semi-structured interviews, this dissertation explored the practical impact of the decision on crime …

Managing Big Data In Complex Litigation, Robert Sanger

Robert M. Sanger

Any lawyer doing complex litigation, civil or criminal, has confronted what seems like an insurmountable sea of data. Many of us have used computer relational database programs and otherwise fought through the mass of information to prepare to try a case. There have been some advancements in managing data made by law enforcement in recent years to make their investigations manageable. During law enforcement investigations, the goal is somewhat different than that of the lawyer preparing for trial; however, the concepts are useful.

Systemic Lying, Julia Simon-Kerr

Julia Simon-Kerr

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that …

Dualism And Doctrine, Alex Stein, Dov Fox

Alex Stein

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …

Inefficient Evidence, Alex Stein

Alex Stein

Why set up evidentiary rules rather than allow factfinders to make decisions by considering all relevant evidence? This fundamental question has been the subject of unresolved controversy among scholars and policymakers since it was raised by Bentham at the beginning of the nineteenth century. This Article offers a surprisingly straightforward answer: An economically minded legal system must suppress all evidence that brings along a negative productivity-expense balance and is therefore inefficient. Failure to suppress inefficient evidence will result in serious diseconomies of scale. To operationalize this idea, I introduce a “signal-to-noise” method borrowed from statistics, science, and engineering. This method …

The New Doctrinalism: Implications For Evidence Theory, Alex Stein

Alex Stein

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement–accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board. …

Law, Science, And The Economy: One Domain?, David S. Caudill

David S Caudill

In an effort to explore the theoretical and practical promise of ignoring or erasing conventional boundaries and distinctions—such as law/society or inside/outside—in accounts of legal processes and institutions, I consider the problem of financial bias in scientific expertise. I first draw an analogy with science studies, and particularly Latour’s notion of science as a coproduction, which challenges the boundaries (i) between science and society, and (ii) between natural and social influences on the production of scientific knowledge. I then acknowledge the efforts of Philip Mirowski, in his concern that privatization trends degrade science, to overcome an individualistic perspective on financial …