Rule of Law Commons^™

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

All Faculty Scholarship

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

New Uri Journal Explores Sexual Exploitation, G. Wayne Miller, Donna M. Hughes Dr.

Donna M. Hughes

Bibliography Of Sources On Prostitution Decriminalization In Rhode Island, Donna M. Hughes Dr., Melanie Shapiro Esq

Donna M. Hughes

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

The real danger of the vigilante impulse is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways, by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic vigilantes …

Dusty Order: Law Enforcement And Participant Cooperation At Burning Man, Manuel A. Gomez

Manuel A. Gómez

Media depictions of Burning Man focus on the picturesque and eccentric appearance of the weeklong affair. The event is sometimes misportrayed as a lawless environment where participants are encouraged to engage in rowdy behavior. Most carnivalesque events offer an escape from reality and are generally thought to enable unruly conduct. Despite stereotypes, Burning Man is a different beast. Not only is the crime rate in Black Rock City lower than any other city of comparable size, but Burners show a high level of cooperative and law abiding behavior that helps maintain the social order without depending on official means of …

The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson

All Faculty Scholarship

By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law …

Apellate Division, Third Department, People V. Kelley, Elyssa Lane

Touro Law Review

No abstract provided.

Dusty Order: Law Enforcement And Participant Cooperation At Burning Man, Manuel A. Gomez

Faculty Books

Media depictions of Burning Man focus on the picturesque and eccentric appearance of the weeklong affair. The event is sometimes misportrayed as a lawless environment where participants are encouraged to engage in rowdy behavior. Most carnivalesque events offer an escape from reality and are generally thought to enable unruly conduct. Despite stereotypes, Burning Man is a different beast. Not only is the crime rate in Black Rock City lower than any other city of comparable size, but Burners show a high level of cooperative and law abiding behavior that helps maintain the social order without depending on official means of …

Preventive Justice And The Presumption Of Innocence, Kimberly Kessler Ferzan

All Faculty Scholarship

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence.

After sketching out a substantive justification for a civil, preventive …

Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel

Articles

When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Prosecuting The Informant Culture, Andrew E. Taslitz

Michigan Law Review

Alexandra Natapoff, in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice, makes a compelling case for reform of the system by which we regulate police use of criminal informants. Indeed, as other writers have discussed, law enforcement's overreliance on such informants has led to a "snitching culture" in which informant snitching replaces other forms of law enforcement investigation (pp. 12, 31, 88-89). Yet snitches, especially jailhouse snitches, are notoriously unreliable.

Theology In The Jury Room: Religious Discussion As "Extraneous Material" In The Course Of Capital Punishment Deliberations, Gregory M. Ashley

Vanderbilt Law Review

"Why would a God concerned about justice in a matter of life and death be willing to delegate an absolute power over life and death to such fallible and morally benighted creatures?'"

In the landmark Furman v. Georgia decision, Justice Brennan likened capital punishment to a mere game of chance: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." Although Brennan's argument in Furman focused primarily on disparities …

Rule Of Law And The Limits Of Sovereignty: The Private Prison In Jurisprudential Perspective, Ahmed A. White

Publications

No abstract provided.

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

The Case Against Section 1983 Immunity For Witnesses Who Conspire With A State Official To Present Perjured Testimony, Jennifer S. Zbytowski

Michigan Law Review

This Note argues that witnesses who conspire with a state official to present perjured testimony at a judicial proceeding should not have absolute immunity from a section 1983 suit for damages. Part I provides background information on section 1983 and explains why a witness-state conspiracy satisfies the requirements of a section 1983 cause of action. Part I also summarizes the Supreme Court's doctrinal approach to section 1983 immunity. Finally, Part I examines two Supreme Court cases which are relevant to the issue of immunity for witness conspirators: Briscoe v. LaHue, and Malley v. Briggs. Part II applies the …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra Ann Livingston

Michigan Law Review

A Review of Above the Law: Police and the Excessive Use of Force by Jerome H. Skolnick and James J. Fyfe

A Sentencing System For The 21st Century?, Paul H. Robinson

All Faculty Scholarship

The Sentencing Reform Act of 1984 created the United States Sentencing Commission and directed it to devise sentencing guidelines for the federal criminal justice system. The Commission recently fulfilled this mandate, promulgating a final set of rules, which took effect November 1. Commissioner Robinson, in filing the lone dissent to these guidelines, argued that they neither meet the expectations of the Act nor provide a comprehensive and workable system. In this Article, Commissioner Robinson discusses the necessary components of a modern, principled, and workable system. He first identifies an ideal system by describing its primary goals and by offering the …

Dissenting View Of Commissioner Paul H. Robinson To The Proposed Sentencing Guidelines For United State Courts, Paul H. Robinson

All Faculty Scholarship

I believe the Sentencing Reform Act of 1984, which created the United States Sentencing Commission, contains two main directives. First, the Commission's guidelines must provide a rational and principled sentencing system that will further the purposes of just punishment and crime control. Second, the guidelines must reduce unwarranted disparity among sentences for similar offenders who commit similar offenses. The Act provides that this is to be achieved through the Commission's promulgation of a comprehensive sentencing system that will bind all federal judges. I opposed the Commission's Preliminary Draft of September, 1986, because I saw it as lacking both guiding principles …

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.