Fourth Amendment Remedies As Rights: The Warrant Requirement, 2016 University of Maryland School of Law
Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray
David C. Gray
The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.
These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the ...
In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, 2016 Streetwise and Safe
In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner Esq.
Brendan M. Conner
The accompanying Article provides the first critical analysis of safe harbor laws, which rely on custodial arrests to prosecute or divert youth arrested for or charged with prostitution related offenses under criminal or juvenile codes to court supervision under state child welfare, foster care, or dependency statutes. This subject is a matter of intense debate nationwide, and on January 27, 2015 the House of Representatives passed legislation that would give preferential consideration for federal grants to states that have enacted a law that “discourages the charging or prosecution” of a trafficked minor and encourages court-ordered treatment and institutionalization. Nearly universally ...
Machine Learning, Automated Suspicion Algorithms, And The Fourth Amendment, 2016 Elon University School of Law
Machine Learning, Automated Suspicion Algorithms, And The Fourth Amendment, Michael L. Rich
Michael L Rich
At the conceptual intersection of machine learning and government data collection lie Automated Suspicion Algorithms, or ASAs, algorithms created through the application of machine learning methods to collections of government data with the purpose of identifying individuals likely to be engaged in criminal activity. The novel promise of ASAs is that they can identify data-supported correlations between innocent conduct and criminal activity and help police prevent crime. ASAs present a novel doctrinal challenge, as well, as they intrude on a step of the Fourth Amendment’s individualized suspicion analysis previously the sole province of human actors: the determination of when ...
Dangerous Dicta, 2015 University of Maryland School of Law
Dangerous Dicta, David C. Gray
David C. Gray
In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is ...
Privately Failing: Recidivism In Public And Private Prisons, 2015 Willamette University
Privately Failing: Recidivism In Public And Private Prisons, Lee N. Gilgan
Lee N Gilgan
This study would add to available research regarding recidivism rates following incarceration in private prisons in contrast to incarceration in government-run prisons. This is a non-experimental meta-analysis viewing numerous studies discussing the effects of multiple covariants within public and private prisons. Based on the information and conclusion in these studies, we find that there is little overall consensus concerning the effects of increased privatization on recidivism. While many studies find certain aspects of privatization to have some potential effect on recidivism, there are many other aspects that either are out of scope or have a negative effect on recidivism. However ...
In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, 2015 University of Richmond School of Law
In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh
Notre Dame Law Review
This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. This Article resurrects Charles Hammond’s arguments and contends that he was right: the best interpretation of section 25 is that it did not encompass Supreme Court appellate review of state criminal prosecutions. Others may reasonably disagree with this Article’s ultimate interpretive conclusion about section 25’s limited reach even while acknowledging the strength of the various supporting arguments. Accordingly, this Article’s basic claim comes in both ...
Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, 2015 University of Denver Sturm College of Law
Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway
Prior to the Supreme Court’s 2004 decision in case of Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even where the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory as to the events described in her prior statement if: 1) the victim was unavailable, and 2) the statement bore ‘adequate indicia of reliability’ as indicated by falling within a ‘firmly rooted hearsay exception’, or satisfied ‘particularized guarantees of trustworthiness’. Ohio v ...
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., 2015 St. Mary's School of Law, Texas
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, 2015 University of Washington - Seattle Campus
Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami
In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only ...
Summary Of Barral V. State, 131 Nev. Adv. Op. 52 (July 23, 2015), 2015 Nevada Law Journal
Summary Of Barral V. State, 131 Nev. Adv. Op. 52 (July 23, 2015), Aleem Dhalla
Nevada Supreme Court Summaries
Defendant Dustin James Barral was convicted of two counts of sexual assault with a minor under 14 years of age by a jury. The Supreme Court of Nevada held that the trial court committed a structural error by failing to administer an oath or affrimation to the jury panel prior to commencing voir dire. This error required reversal and a new trial.
Beware Of Government Agents Bearing Trojan Horses, 2015 Texas Tech University School of Law
Beware Of Government Agents Bearing Trojan Horses, Brian L. Owsley
Akron Law Review
No abstract provided.
Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas
Cornell Law Library Prize for Exemplary Student Research Papers
In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil ...
Appellate Review Of Unpreserved Questions In Criminal Cases: An Attempt To Define The Interest Of Justice, 2015 University of Arkansas at Little Rock William H. Bowen School of Law
Appellate Review Of Unpreserved Questions In Criminal Cases: An Attempt To Define The Interest Of Justice, Larry Cunningham
The Journal of Appellate Practice and Process
No abstract provided.
Obama's Get-Out-Of-Jail-Free Decree, 2015 University of Pennsylvania Law School
Obama's Get-Out-Of-Jail-Free Decree, Paul H. Robinson
While agreeing that sentences for nonviolent drug offenses are too long, this Wall Street Journal op-ed piece argues that the large-scale clemency program planned by President Obama is misguided. It sets a dangerous precedent for using the clemency power beyond its traditional and intended purpose of providing a last-resort check on fairness and justice errors in individual cases, and instead uses the power to set sentencing policy. While many people will like the results of the current program, they will be less than happy when some future president uses it as precedent to promote a sentencing policy of which they ...
Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight
Jared J Hight
The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily ...
Do We Know How To Punish?, 2015 U.S. Dept. of Labor
Do We Know How To Punish?, Benjamin L. Apt
Benjamin L. Apt
A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological ...
Mental Health Courts: Bridging Two Worlds, 2015 Touro College Jacob D. Fuchsberg Law Center
Mental Health Courts: Bridging Two Worlds, Honorable Matthew J. D’Emic
Touro Law Review
No abstract provided.
Lost In A Legal Thicket, 2015 University of Pennsylvania Law School
Lost In A Legal Thicket, Paul H. Robinson
This op-ed piece argues that criminal law recodification is badly needed in the states and the federal system, but that prosecutors stand out as the group who appear to regularly oppose it.
Rules Of Evidence For Your First Federal Or New York Trial, 2015 Columbia, Fordham & NYU Law Schools
Rules Of Evidence For Your First Federal Or New York Trial, Gerald Lebovits
No abstract provided.
The Immigration Detention Risk Assessment, 2015 American Immigration Council
The Immigration Detention Risk Assessment, Mark Noferi, Robert Koulish
Mark L Noferi
In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history—potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.
This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ...