Courts Commons^™

Volume 6, Issue 1 (2023) Criminal Justice Agents And Responsibility, Colleen Berryessa, Elizabeth Griffiths, Kaitlen Hubbard, Deena A. Isom, Kateryna Kaplun, Hiuxuan Li, Siyu Liu, Esther Nir, Heather L. Scheuerman, Rachel Schumann, Sandy Xie, Carolyn Yule

International Journal on Responsibility

This special issue of the International Journal on Responsibility (IJR) advances scholarship on the various ways responsibility infuses the roles of criminal justice agents. As the inaugural issue of my tenure as Editor-in-Chief, Volume 6 deepens our understanding of responsibility in the context of the criminal justice system, thereby fulfilling IJR’s aim and scope. Specifically, the articles highlight issues of responsibility within each component of the criminal justice system: police, courts, and corrections.

The Role Of U.S. Government Regulatioms, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.

Contextual Determinants Of Re-Reporting For Families Receiving Alternative Response: A Survival Analysis In A Midwestern State, Jianchao Lai, Michelle Graef, Todd Franke, Toby Burnham

Center on Children, Families, and the Law: Faculty Publications

Differential response (DR) has been widely adopted in over 30 states to address shortcomings of the traditional approach to child maltreatment reports in complex family and case circumstances. However, despite continued evaluation efforts, evidence of the effectiveness of DR remains inconclusive. The current study aims to assess the impact of a DR program and potential predictors, including service match and number of family case workers, on maltreatment re-reports in a Midwestern state. The study utilized a randomized control trial and assigned eligible families to either the Alternative Response (AR) track or Traditional Response (TR) track. The enrollment was implemented in …

Examining Remorse In Attributions Of Focal Concerns During Sentencing: A Study Of Probation Officers, Colleen M. Berryessa

International Journal on Responsibility

This research, using interviews with probation officers in the United States (n = 151) and a constant comparative method for analysis, draws from the focal concerns framework to qualitatively model a process by which probation officers use a defendant’s remorse to attribute focal concerns in order to guide their sentencing recommendations in pre-sentencing reports. The model suggests that officers use expressions of remorse to make attributions about mitigated criminal intention (blameworthiness and notions of responsibility), reduced dangerousness and a high potential for reform (community protection), and organization-level effects for increasing caseload efficiency and using correctional resources (practical effects of …

Examining The Effects Of Student Loan Forgiveness And The Christian Perspective, Sarah Rogers

Helm's School of Government Conference - American Revival: Citizenship & Virtue

On August 24, 2022, President Joe Biden announced his plan for federal student loan forgiveness. The program allows individuals who make less than $125,000 a year and families under $250,000 relieve up to $10,000 of their loan debt. Those who fall under the Pell Grant program are able to relieve up to $20,000 of their debt. The reactions to this “revolutionary” program were mixed. Typically, those who the program would directly affect were very enthusiastic about this idea while those, most notably Republicans, were less than thrilled. While the idea is good in theory, the execution of debt forgiveness will …

Just Choices? Judicial Selection, Ideology, And Partisanship In The Ohio Supreme Court, Margo D'Agostino

Undergraduate Honors Thesis Projects

This thesis joins the conversation on judicial selection and impacts on judicial ideology. This is a multifaceted question that engages with the history of judicial selection, differences between states, growing polarization and partisanship, and an influx in campaign spending that can all influence Justices’ behavior while on the bench. While other theorists have used more quantitative or statistical analytics, more research is still needed on the nuanced and qualitative questions surrounding the judiciary in the United States, especially on the state level. I look at three Ohio Supreme Court Justices—Maureen O’Connor, Jennifer Brunner, and Sharon Kennedy—and decisions they have penned …

The Intenational Crimial Court (Icc) As A Mechanism For Global Justice And Rule Of Law, Paolo Davide Farah

Book Chapters

Throughout history, institutions have been the chosen platforms for governing and regulating society. However, in the twenty-first century, with unprecedented connectivity and interdependence, working toward multilateral solutions for global challenges, whether in climate change through the UNFCCC or in trade via the World Trade Organization, has become increasingly complex. This rise in complexity within the international landscape has not been met with proportional attention to cooperation, conflict resolution, and harmonizing human values.

It is relevant to highlight the intersection between the International Criminal Court (ICC) and broader questions within international humanitarian law, (IHL) its interconnections and intertwinement with International Criminal …

Urgenda Vs. Juliana: Lessons For Future Climate Change Litigation Cases, Paolo Davide Farah, Imad Antoine Ibrahim

Articles

No abstract provided.

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

All Faculty Scholarship

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

Articles

U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either …

Changing Every Wrong Door Into The Right One: Reforming Legal Services Intake To Empower Clients, Jabeen Adawi

Articles

It’s recognized that people affected by poverty often have numerous overlapping legal needs and despite the proliferation of legal services, they are unable to receive full assistance. When a person is faced with a legal emergency, rarely is there an equivalent to a hospital’s emergency room wherein they receive an immediate diagnosis for their needs and subsequent assistance. In this paper, I focus on the process a person goes through to find assistance and argue that it is a burdensome, and demoralizing task of navigating varying protocols, procedures, and individuals. While these systems are well intentioned from the lawyer’s perspective, …

Creating A Home Base For Treatment In Homeless Courts, Kyle C. Troeger

Student Publications

As the number of unsheltered homeless increases, an alternative to criminalization, homeless courts, have also become more common. 18 States currently have one or more specialty court programs dedicated to meting out alternative sentencing to the local homeless. Homeless courts are a rehabilitative process with the end goal of reintegration into society. They allow nonviolent misdemeanors to be resolved without jail time or fines. In lieu of traditional sentencing is community service and mandated self-improvement. This chapter examines the current criminalization, and history, of homelessness in the United States. Of primary interest is the development of homeless courts as an …

Vertical Control, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust litigation often requires courts to consider challenges to vertical “control.” How does a firm injure competition by limiting the behavior of vertically related firms? Competitive injury includes harm to consumers, labor, or other suppliers from reduced output and higher margins.

Historically antitrust considers this issue by attempting to identify a market that is vertically related to the defendant, and then consider what portion of it is “foreclosed” by the vertical practice. There are better mechanisms for identifying competitive harm, including a more individualized look at how the practice injures the best placed firms or bears directly on a firm’s …

Antitrust Harm And Causation, Herbert J. Hovenkamp

All Faculty Scholarship

How should plaintiffs show harm from antitrust violations? The inquiry naturally breaks into two issues: first, what is the nature of the harm? and second, what does proof of causation require? The best criterion for assessing harm is likely or reasonably anticipated output effects. Antitrust’s goal should be output as high as is consistent with sustainable competition.

The standard for proof of causation then depends on two things: the identity of the enforcer and the remedy that the plaintiff is seeking. It does not necessarily depend on which antitrust statute the plaintiff is seeking to enforce. For public agencies, enforcement …

After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne

All Faculty Scholarship

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive …

Victim Impact: The Manson Murders And The Rise Of The Victims’ Rights Movement, Merrill W. Steeg

University of New Orleans Theses and Dissertations

No abstract provided.

Out Of Sight, Out Of Mind: Analyzing Inhumane Practices In Mississippi’S Correctional Institutions Due To Overcrowding, Understaffing, And Diminished Funding, Ariel A. Williams

Honors Theses

The purpose of this research is to examine the political, social, and economic factors which have led to inhumane conditions in Mississippi’s correctional facilities. Several methods were employed, including a comparison of the historical and current methods of funding, staffing, and rehabilitating prisoners based on literature reviews. State-sponsored reports from various departments and the legislature were analyzed to provide insight into budgetary restrictions and political will to allocate funds. Statistical surveys and data were reviewed to determine how overcrowding and understaffing negatively affect administrative capacity and prisoners’ mental and physical well-being. Ultimately, it may be concluded that Mississippi has high …

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton

All Faculty Scholarship

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

“Born Under My Heart”: Adoptive Parents’ Use Of Metaphors To Make Sense Of Their Past, Present, And Future, Lucas Hackenburg, Toni Morgan, Eve Brank

Center on Children, Families, and the Law: Faculty Publications

Metaphors provide the opportunity to make sense of our experiences and share them with others. The current research qualitatively examined interviews with adoptive parents who had adopted through intercountry or private adoptions. Throughout their interviews, each participant used at least one metaphor in describing their experiences of adopting and raising their child. Overarchingly, the metaphor of “Adoption is a journey” encapsulated parents’ experiences. To demonstrate the journey, parents used metaphors to describe the past, present, and future. Metaphors of the past focused on their child’s trauma and the origin of how the child came to join their family. Metaphors used …

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

All Faculty Scholarship

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

Articles

The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

Whitman And The Fiduciary Relationship Conundrum, Lisa Fairfax

All Faculty Scholarship

While the law on insider trading has been convoluted and, in Judge Jed S. Rakoff’s words, “topsy turvy,” the law on insider trading is supposedly clear on at least one point: insider trading liability is premised upon a fiduciary relationship. Thus, all three seminal U.S. Supreme Court cases articulating the necessary elements for demonstrating any form of insider trading liability under § 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 made crystal clear that a fiduciary relationship represented the lynchpin for such liability.

Alas, insider trading law is not clear about the source from which the fiduciary …

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

It Is Time To Get Back To Basics On The Border, Donna Coltharp

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Picking The Lock: A Proposal For A Standard Fee Waiver In Texas For Identification Documents, Gregory Zlotnick

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …