Digital Commons Network^™

Felon Disenfranchisement: A Call For Legislative Reform, Timothy P. Gilligan

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement And The Systemic Racism Of The Criminal Justice System, Matthew D. Itkin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement As A Legitimate State Regulation, Boyoung Kang

Journal of Race, Gender, and Ethnicity

No abstract provided.

"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair

University of Michigan Journal of Law Reform

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Michigan Law Review

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

Constitutional Law And International Law: National Exceptionalism And The Democratic Deficit?, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 16 2009, Former Justice of the High Court of Australia, the Honourable Michael Kiryby delivered the Georgetown Law Center’s twenty-ninth annual Philip A. Hart Lecture: “ Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?”

When he retired from the High Court of Australia on February 2, 2009, Michael Kirby was Australia’s longest serving judge.

He was first appointed in 1975 as a Deputy President of the Australian Conciliation & Arbitration Commission. Soon after, he was seconded as inaugural Chairman of the Australian Law Reform Commission (1975-84). Later, he was appointed a judge of the Federal …

United States V. Chambers: Noncustodial Escapes Do Not Always Constitute A Violent Crime For Purposes Of The Armed Career Criminal Act, Jin Woo Oh

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Revisiting Prosecutorial Disclosure, Alafair S. Burke

Indiana Law Journal

After the exoneration of more than 200 people based on post-conviction DNA evidence, a growing movement against wrongful convictions has called increased attention to the prosecutorial suppression of material exculpatory evidence. Commentators frequently study prosecutorial failures to disclose as a form of intentional misconduct, coloring both the description of the problem and the recommended solutions. This Article, in contrast, explores how even ethical prosecutors might fail to disclose exculpatory evidence because off laws in the Brady doctrine itself-specifically, the Court's limitation of the doctrine to "material" exculpatory evidence. The materiality standard amplifies cognitive biases that distort even an ethical prosecutor's …

Confronting Scientific Reports Under Crawford V. Washington, Bennett L. Gershman

Pace Law Review

No abstract provided.

Towards A More Reasonable Approach To Free Will In Criminal Law, Stephen O'Hanlon

Cardozo Public Law, Policy & Ethics Journal

This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy ofpunishment. Part V considers the possibility of determiningpropensity for criminal activity based on assessing causal factors and …

The Perilous Dialogue, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in …

Between Fragmentation And Unity: The Uneasy Relationship Between Global Administrative Law And Global Constitutionalism, Ming-Sung Kuo

San Diego International Law Journal

This paper aims to critically examine the status of global administrative law within the already widely acknowledged notion of global constitutionalism. While global constitutionalism describes the processual "constitutionalization" of an increasingly globalized world through the values emerging from cross-border regulatory cooperation, the global regulatory process at the heart of global administrative law appears to take the place of "We the People" as the creative force behind global constitutionalism. Contrary to the domestic/national context, the identitarian relationship between global administrative law and global constitutional law suggests the unity of global legality, whether it be called administrative law or constitutionalism. The paper …

Judicial Confusion And Inconsistency In Handling Juror Misconduct: A New Proposal, Kristen D. Clardy

William & Mary Bill of Rights Journal

No abstract provided.

Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Melendez-Diaz V. Massachusetts: Laboratory Testing And The Confrontation Clause, David Mansfield

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The "Define And Punish" Clause And The Limit Of Universal Jurisdiction, Eugene Kontorovich

Faculty Working Papers

This Article examines whether the "Define and Punish" clause of the Constitution empowers Congress to criminalize foreign conduct unconnected to the United States. Answering this question requires exploring the Constitution's "Piracies and Felonies" provision. While it is hard to believe this can still be said of any constitutional provision, no previous work has examined the scope of the "Piracies and Felonies" powers. Yet the importance of this inquiry is more than academic. Despite its obscurity, the Piracies and Felonies power is the purported Art. I basis for a statute currently in force, which represents Congress's most aggressive use of universal …

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …

Peering Into The Judicial Magic Eight Ball: Arbitrary Decisions In The Area Of Juror Removal, 42 J. Marshall L. Rev. 813 (2009), Kimberly Wise

UIC Law Review

No abstract provided.

Discrimination, Coercion, And The Bail Reform Act Of 1984: The Loss Of The Core Constitutional Protections Of The Excessive Bail Clause, Samuel Wiseman

Fordham Urban Law Journal

This Article examines the history and judicial interpretation of the Eighth Amendment's Excessive Bail Clause, which reads "excessive bail shall not be required." Debate on this topic has centered around two questions: whether the Clause binds only the courts or Congress as well and whether it creates any substantive right to bail. Specifically, the Article discusses the Bail Reform Act of 1984, and the Supreme Court's subsequent interpretation of the Act in United States v. Salerno. The Salerno court suggested that the Excessive Bail Clause limits only the judiciary and found, at a maximum, only an extremely limited substantive right …

Transitioning Our Prisons Toward Affirmative Law: Examining The Impact Of Gender Classification Policies On U.S. Transgender Prisoners, Richael Faithful

The Modern American

No abstract provided.

Treaties As "Part Of Our Law", Ernest A. Young

Faculty Scholarship

No abstract provided.

Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

Vindicating The Matriarch: A Fair Housing Act Challenge To Federal No-Fault Evictions From Public Housing, Melissa A. Cohen

Michigan Journal of Gender & Law

Pearlie Rucker, sixty-three years old, had been living in public housing in Oakland, California for thirteen years. Ms. Rucker lived with her mentally disabled adult daughter, Gelinda, as well as two grandchildren and one great-grandchild. Ms. Rucker regularly searched Gelinda's room for signs of drugs, and had warned Gelinda that any drug activity on the premises could result in eviction. Nevertheless, Gelinda was caught with drugs three blocks from the apartment. Despite the fact that Ms. Rucker had no knowledge of Gelinda's drug activity, and in fact had been carefully monitoring what happened in her apartment, the Oakland Housing Authority …

Protecting The Innocent: Post-Conviction Dna Exoneration, Sophia S. Chang

UC Law Constitutional Quarterly

Eight states in the nation do not have laws allowing post-conviction DNA exoneration: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota, and Wyoming. Without such laws, most wrongly convicted prisoners have no chance at proving their innocence because their defense depends on the exculpatory, yet unattainable, evidence that DNA provides. Denial of access to DNA evidence, whether prior to or after conviction, is an unconstitutional violation of due process. Additionally, forcing innocent people to remain in prison denies basic rights of prisoners and constitutes cruel and unusual punishment.

This Note argues that the prohibition of post-conviction DNA exoneration defeats …

Medical Hope, Legal Pitfalls: Potential Legal Issues In The Emerging Field Of Oncofertility, Gregory Dolin, Dorothy E. Roberts, Lina M. Rodriguez, Teresa K. Woodruff

All Faculty Scholarship

The article will begin its discussion by identifying the values at stake in the field of oncofertility. These values include the constitutional protection of the rights of women and minors to bear children and to use reproduction-assisting technologies, as well as the feminist critique of gendered expectations that may pressure women to use these technologies.

Part III will focus on the medical options of oncofertility. It will also discuss some conditions that may lead otherwise fertile and young patients to lose their ability to bear children as a side-effect of necessary medical treatment. The article will then proceed to discuss …

Using Article Iv Of The Illinois Constitution To Attack Legislation Passed By The General Assembly, Michael J. Kasper

Loyola University Chicago Law Journal

No abstract provided.

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov

Faculty Scholarship

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin

American University Law Review

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …

A Short Overview Of The Statutory Remedies For The Wrongly Convicted: What Works, What Doesn't And Why, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.