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Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins Jr.

Scholarly Works

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which …

Harrington V. Richter: Aedpa Deference And The Right To Effective Counsel, Kara Duffle

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander

Faculty Working Papers

Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid …

Child, Please – Stop The Anti-Queer School Bullycides: A Modest Proposal To Hoist Social Conservatives By Their Own “God, Guns, And Gays” Petard, David Groshoff

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Convictions, Yolanda Vazquez

Faculty Articles and Other Publications

On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding …

Foreign Law As Legislative Fact In Constitutional Cases, A. Christopher Bryant

Faculty Articles and Other Publications

Do we really need another law review article about foreign law in constitutional interpretation? In fact, we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

Excessive Public Defense Workloads: Are Aba Standards For Criminal Justice Adequate, Norman Lefstein

UC Law Constitutional Quarterly

Excessive caseloads among public defenders in the United States is a pervasive national problem, which not only often prevents lawyers from furnishing their clients competent and diligent representation as required by rules of professional conduct but also jeopardizes the quality of justice in criminal and juvenile courts. Although the American Bar Association has addressed the problem in various policy statements, including its Criminal Justice Standards, Professor Lefstein argues that there are still issues that are not adequately covered. Specifically, he argues that the ABA should consider the development of standards that (1) authorize defenders to refuse to provide representation when …

Police Mistakes Of Law, Wayne A. Logan

Scholarly Publications

This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts condone seizures based on what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for unrelated, more serious offenses (usually relating to guns or drugs). The Article surveys the important rule-of-law, separation-of-powers, and legislative-accountability reasons supporting continued judicial adherence to the historic no-excuse …

Conflicts Over Conflicts: Challenges In Redrafting The Aba Standards For Criminal Justice On Conflicts Of Interest, Laurie L. Levenson

UC Law Constitutional Quarterly

Currently, an ABA Task Force faces the considerable challenge of redrafting the ABA Standards for Criminal Justice. Prosecutors and defense counsel need clear guidance on how to handle conflicts of interest rules. However, the initial challenge is in identifying those questions a code of ethics should answer when it comes to conflict situations. With the help of prominent lawyers, academics and judges who participated in a series of roundtables on the new ABA standards, this article identifies forty of the key questions to ask about conflicts of interests. These questions allow real progress to be made toward creating a code …

Witness Preparation: Regulating The Profession's Dirty Little Secret, Roberta K. Flowers

UC Law Constitutional Quarterly

Although all attorneys understand that coaching a witness to testify falsely is unethical, additional ethical restraints surrounding witness preparation in criminal cases are not clearly defined by case law, rules of professional conduct or even the newly drafted Criminal Justice Standards for Prosecutors and Defense Attorneys. Many have suggested that the line between proper witness preparation and improper witness coaching is not clear. This article explores some of the gray areas of the practice of witness preparation and why criminal attorneys from both sides of the aisle need guidance on permissible and impermissible conduct in this routine practice of criminal …

Closing The Door On Misconduct: Rethinking The Ethical Standards That Govern Summations In Criminal Trials, Daniel S. Medwed

UC Law Constitutional Quarterly

Closing argument is the most pivotal moment in a criminal trial. It represents the last opportunity for prosecutors to convince jurors of the defendant's guilt and for defense lawyers to show reasonable doubt. As a result, criminal lawyers may be tempted to conclude with sweeping arguments that pull at the heartstrings of their target audience, the jury. Scholars dating back to Aristotle have warned that the most persuasive arguments often contain an appeal to emotion-and that emotionally laden rhetoric can distract people from making rational choices.

Legal ethicists have struggled with the issues surrounding closing arguments, trying to reconcile the …

Confidentiality And Disclosure: What The New Aba Criminal Justice Standards (Don't) Say About The Duties Of Defense Counsel, Cecila Klingele

UC Law Constitutional Quarterly

Although the duty to keep client confidences is one of a defense lawyer's defining characteristics, there are times when a lawyer will disclose otherwise confidential information to protect the safety of third parties, convey information to successor counsel, or defend against claims of ineffective assistance. Although disclosure in such instances is sometimes mandated by state professional ethics codes, more often the decision to disclose is left to the discretion of the individual lawyer. One of the few formal resources that offers guidance to defense counsel in making disclosure decisions is the American Bar Association's Criminal Justice Standards for the Defense …

Every Step You Take, They'll Be Watching You: The Legal And Practical Implications Of Lifetime Gps Monitoring Of Sex Offenders, Sarah Shekhter

UC Law Constitutional Quarterly

In 2006, California voters passed Proposition 63 ("Jessica's Law") which, among other provisions, required lifetime GPS monitoring of sex offenders. So far, California has only succeeded in fixing GPS devices to registered sex offenders on parole, yet this already constitutes the largest use of GPS monitoring anywhere in the world. A proper analysis of the constitutional issues surrounding electronic surveillance of parolees, probationers, and the released is warranted before further implementation.

This note explores past constitutional challenges to surveillance technology and sex offender legislation, applying their analyses to lifetime monitoring of sex offenders. It concludes that lifetime GPS monitoring threatens …

Waiving Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Campbell Moriarty, Marisa Main

UC Law Constitutional Quarterly

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant's proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993; the changes in the practice since that time; and the proposed changes to the Standards. The article focuses on the complex …

School Discipline Of Cyber-Bullies: A Proposed Threshold That Respects Constitutional Rights, 45 J. Marshall L. Rev. 85 (2011), Laura Pavlik Raatjes

UIC Law Review

No abstract provided.

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins Jr.

American University Law Review

No abstract provided.

In Order To Be Silent, You Must First Speak: The Supreme Court Extends Davis's Clarity Requirement To The Right To Remain Silent In Berghuis V. Thompkins, 44 J. Marshall L. Rev. 423 (2011), Harvey Gee

UIC Law Review

No abstract provided.

Barnes-Wallace V. City Of San Diego: "Psychological Injury" And Its Effect On Standing, 44 J. Marshall L. Rev. 507 (2011), Andrew Meyer

UIC Law Review

No abstract provided.

Citizens United And Tiered Personhood, 44 J. Marshall L. Rev. 717 (2011), Atiba R. Ellis

UIC Law Review

No abstract provided.

Convicted By A Sleeping Jury: Harmless Error Or A Challenge To The Integrity Of Our Criminal Justice System, 44 J. Marshall L. Rev. 751 (2011), Rhandi Childress

UIC Law Review

No abstract provided.

Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon

Michigan Journal of Gender & Law

Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …

California Penal Code Sec. 270.1: A Constitutionally Impermissible Attempt To Combat Truancy, Alison Cordova

UC Law Constitutional Quarterly

In the 2008-2009 academic school year, over a quarter of the California public school student population was truant. There is a well established correlation between truancy and dropping out of high school. And high school dropouts make up over three quarters of the prison population of the State of California.

Responding to this alarming domino effect, the California Legislature enacted Penal Code section 270.1 in September, 2010. This statute imposes criminal liability on parents of chronically truant students for not encouraging or supervising their child's school attendance. While the aim of this law is clearly to attack criminality before it …

Interrogation And The Roberts Court, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not …

The Viability Of Multi-Party Litigation As A Tool For Social Engineering Six Decades After The Restrictive Covenant Cases, José F. Anderson

All Faculty Scholarship

Six decades ago, a group of lawyers sought ways to overturn the racially restrictive covenants that were common across the United States. These restrictions on integrated neighborhoods were the first legal battleground of the civil rights movement using the courts of civil justice to remove what many thought were immoral restrictions on the rights of free people. The most famous of those cases was Shelley v. Kraemer, but the doctrine that emerged from that particular case was actually a series of separate, multi-party lawsuits in various locations, using teams of lawyers acting in concert with each other to achieve justice. …

Handcuffing The Press: First Amendment Limitations On The Reach Of Criminal Statutes As Applied To The Media, Lee Levine, Nathan E. Siegel, Jeanette Melendez Bead

NYLS Law Review

No abstract provided.

The Right To Refuse: Should Prison Inmates Be Allowed To Discontinue Treatment For Incurable, Noncommunicable Medical Conditions?, Daniel R. H. Mendelsohn

Maryland Law Review

No abstract provided.

The Role Of Reporter For A Law Project, Rory K. Little

UC Law Constitutional Quarterly

Professor Little has served as the Reporter for the ABA's Task Force to Revise the Criminal Justice Standards for the Prosecution and Defense Functions since 2005. In this introductory essay for a unique joint publication Symposium between the Hastings Constitutional Law Quarterly and the Hastings Law Journal focused on the Standards, Professor Little provides his description of the role of a Reporter for a law project. Surprisingly, despite almost a century of academics serving as Reporters for law projects sponsored by the American Law Institute and the ABA, there is no literature providing the "inside story" of a Reporter's role. …

A Different Path Taken: Texas Capital Offenders' Post-Atkins Claims Of Mental Retardation, Peggy M. Tobolowsky

UC Law Constitutional Quarterly

In 2002, in Atkins v. Virginia, the United States Supreme Court held that the execution of mentally retarded offenders is unconstitutional, and entrusted the enforcement of this constitutional ban to the states. In the absence of legislative action in Texas, the Texas Court of Criminal Appeals has established substantive and procedural standards to resolve Texas offenders' Atkins claims of mental retardation for offenders seeking state post-conviction relief. This Texas appellate court has also specified most of the standards to resolve Atkins claims at the trial court level and on direct appeal. The United States Court of Appeals for the Fifth …

Spreading The Wealth: Is Asset Forfeiture The Key To Enticing Local Agencies To Enforce Federal Drug Laws, David T. Gibson

UC Law Constitutional Quarterly

The "War on Drugs" has proven a costly program for the federal government. One of the ways that this ambitious and resource intensive effort has sustained itself is through asset forfeiture of property previously held by criminals. By seizing title to confiscated property that has been used directly in drug crimes or indirectly to further a criminal conspiracy, the government has been able to absorb substantial resources to further its efforts in waging its drug war against drug criminals.

Asset forfeiture is a powerful tool wielded by law enforcement, and can quickly and effectly shut down drug production and trafficking …