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The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Volume 100, Number 4 (Winter 2016)

Judicature

No abstract provided.

The Right To Privacy And The Right To Use The Bathroom Consistent With One’S Gender Identity, Vincent J. Samar

Duke Journal of Gender Law & Policy

No abstract provided.

The Constitution V. The Convention: The Evolution Of The Court-Mandated Right To Counsel In The United States And Europe, Sara Sun Beale, Richard E. Myers Ii

Duke Journal of Comparative & International Law

No abstract provided.

The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, under Rule 606(b) of the Federal Rules of Evidence, jurors are barred from testifying towards matters within juror deliberations. However, many jurisdictions in the United States have adopted an exception to this rule for racial prejudice. That is, if a juror comes forward post-verdict to testify that another juror made racially charged comments within the jury room, then the verdict may be overturned. The Supreme Court will address this issue in its upcoming decision in Pena-Rodriguez v. Colorado. This commentary will argue that a racial bias exception is necessary to protect defendants' rights to a fair trial and …

Muscle Memory And The Local Concentration Of Capital Punishment, Lee Kovarsky

Duke Law Journal

The modern death penalty is not just concentrating in a handful of practicing states; it is disappearing in all but a few capitally active localities. Capital-punishment concentration, however, still surfaces more as the subject of casual observation than as the object of sophisticated academic inquiry. Normative and doctrinal analyses of the phenomenon are virtually nonexistent, in part because the current ability to measure and report concentration is so limited.

This Article is the first attempt to measure capital-punishment concentration rigorously, by combining different sources of county-level data and by borrowing quantitative tools that economists use to study market competition. The …

The Challenges Of “Improving” The Modern Death Penalty, Douglas A. Berman

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Empirical Analysis And The Fate Of Capital Punishment, John J. Donohue

Duke Journal of Constitutional Law & Public Policy

In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Supreme Court’s prior command in Atkins v. Virginia that unless the imposition of the death penalty “measurably contributes to one or both of [the legitimate penological goals of deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Justice Breyer’s opinion illuminates the central role that empirical studies have played in death penalty litigation since Furman v. Georgia on issues ranging from the lack of deterrence associated with the death …

Un-Gregg-Ulated: Capital Charging And The Missing Mandate Of Gregg V. Georgia, Sherod Thaxton

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Leveling The Playing Field: Applying Federal Corporate Charging Considerations To Individuals, Nicole T. Amsler

Duke Law Journal

The American prison system is grappling with a well-publicized carceral crisis. In the words of former U.S. Attorney General Eric Holder, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” And, as a result of developments in federal law over the past few decades, the power of federal prosecutors to decide when and how to charge individuals with crimes is crucial to when and how American citizens go to prison.

Many ideas have been proposed to revise prosecutorial discretionary powers, but few have been heeded by the Department of …

The Adjudication Of Foreign Official Immunity Determinations In The United States Post-Samantar: A Circuit Split And Its Implications, Christopher D. Totten

Duke Journal of Comparative & International Law

No abstract provided.

“People Power” And The Problem Of Sovereignty In International Law, Elizabeth A. Wilson

Duke Journal of Comparative & International Law

No abstract provided.

The Canary-Blind Constitution: Must Government Ignore Racial Inequality?, Kim Forde-Mazrui

Law and Contemporary Problems

No abstract provided.

Race, Policing, And Lethal Force: Remedying Shooter Bias With Martial Arts Training, Cynthia Lee

Law and Contemporary Problems

No abstract provided.

Foreword, Trina Jones, Guy-Uriel E. Charles, Angela Onwuachi-Willig

Law and Contemporary Problems

No abstract provided.

Unity In The Struggle: Immigration And The South’S Emerging Civil Rights Consensus, Hana E. Brown, Jennifer A. Jones, Taylor Dow

Law and Contemporary Problems

No abstract provided.

Black Contemporary Social Movements, Resource Mobilization, And Black Musical Activism, Andrea L. Dennis

Law and Contemporary Problems

No abstract provided.

Statistical Inequality And Intentional (Not Implicit) Discrimination, Michael Selmi

Law and Contemporary Problems

No abstract provided.

The Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett

Faculty Scholarship

The Constitution increasingly regulates the use of forensic evidence in criminal cases. This is a remarkable shift. In decades past, the U.S. Supreme Court declined to provide strong due process protection against destruction of forensic evidence or to obtain defense access to experts. In contrast, in recent years, the Court’s series of Confrontation Clause rulings tightened requirements to present live testimony in the courtroom. Perhaps far more significant, I will argue, the Court has strengthened obligations of defense counsel to litigate forensics, twice underscoring in little noticed opinions: “Criminal cases will arise where the only reasonable and available defense strategy …

Bad Hair: The Legal Response To Mass Forensic Errors, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Volume 100, Number 2 (Summer 2016)

Judicature

No abstract provided.

Subsidiarity In Global Governance, Markus Jachtenfuchs, Nico Krisch

Law and Contemporary Problems

No abstract provided.

Sidelining Subsidiarity: United Nations Security Council “Legislation” And Its Infra-Law, Isobel Roele

Law and Contemporary Problems

No abstract provided.

Run-On Sentence: Remedies For Erroneous Career Offender Enhancements, John Patrick Bailey

Duke Law Journal

Guilty pleas have come to resolve all but a fraction of federal criminal cases. So for most federal defendants, sentencing is the criminal justice process’s most important phase. That phase begins with the calculation of a recommended sentencing range based on the U.S. Sentencing Guidelines. If a defendant has previously committed two violent crimes or drug offenses, the Guidelines designate him a career offender and drastically enhance his recommended sentencing range. The range is only advisory, but judges must consult and account for the range, and it plays an unquestionably significant role in the defendant’s ultimate sentence. What if the …

Volume 100, Number 1 (2016)

Judicature

No abstract provided.

Constitutional Lawyers And The Inter-American Court’S Varied Authority, Alexandra Huneeus

Law and Contemporary Problems

No abstract provided.

The International Criminal Court And The Paradox Of Authority, Leslie Vinjamuri

Law and Contemporary Problems

No abstract provided.

International Courts In Atypical Political Environments: The Interplay Of Prosecutorial Strategy, Evidence, And Court Authority In International Criminal Law, Ron Levi, John Hagan, Sara Dezalay

Law and Contemporary Problems

No abstract provided.

The Young And The Redemptionless? Juvenile Offenders Before Miller V. Alabama, Katherine Johnson

Duke Journal of Constitutional Law & Public Policy Sidebar

The Eighth Amendment to the U.S. Constitution prohibits excessive criminal sanctions, and the Supreme Court has held that this provision has special application in situations dealing with juvenile offenders. This Commentary looks at the recent Supreme Court case of Montgomery v. Louisiana, in which the Court held that there was a constititutional prohibition of life sentences without parole for juvenile offenders. This Commentary argues that this is the correct result under the Court’s Eighth Amendment jurisprudence but that the Court should also have held that the sole remedy for such constitutional violations is resentencing.

Luis V. United States: Asset Forfeiture Butts Heads With The Sixth Amendment, Jordan Glassberg

Duke Journal of Constitutional Law & Public Policy Sidebar

In recent years, the federal government has vastly increased its use of asset forfeiture, the seizure of property connected to illegal activities. As authorized under federal law, the government is also able to restrain assets prior to trial when the government belives those assets will ultimately be found to be forfeitable. This pretrial restraint potentially implicates the constitutionally guaranteed right to counsel for criminal defendants. In the upcoming Supreme Court case of Luis v. United States, the Court will address the question of whether a pretrial restraint of assets which are not traceable to any illegal activity is permissible …