Digital Commons Network^™

Improving Access To Justice In Developing And Post-Conflict Countries: Practical Examples From The Field, Jessica Vapnek, Peter Boaz, Helga Turku

Duke Forum for Law & Social Change

No abstract provided.

Assuming The Risk Of Death: Implications Of The Olivia Brown Case, Natalie Webb

Duke Forum for Law & Social Change

No abstract provided.

Innocent Until Proven Guilty?: Examining The Constitutionality Of Public Housing Evictions Based On Criminal Activity, Leah Goodridge, Helen Strom

Duke Forum for Law & Social Change

No abstract provided.

Diffusion Of Knowledge: The Ignored Goal Of Public Education, James E. Coleman Jr.

Duke Forum for Law & Social Change

No abstract provided.

Process Matters: Specialization In Federal Appellate Review Of Noncapital Section 2254 Cases, Jyoti Rani Jindal

Duke Law Journal

This Note assesses the need for specialized review in the federal circuit courts of noncapital habeas cases brought by state prisoners under 28 U.S.C. § 2254. It first argues that the complexity of federal habeas law, the substantial disuniformity between circuits, the conflicting visions proffered by the Warren Court’s habeas jurisprudence and Congress’s recent statutory enactments—together with the greatest stakes possible at issue, liberty—are all factors warranting the creation of a national court of appeals that would hear only habeas cases. Recognizing, however, that creating such a court is a low priority for Congress at best and simply unfeasible at …

Enhancing Judicial Institutions: Enhancing Economic Development, Stephane Alia Haisley

Duke Law Master of Judicial Studies Theses

Since the 1980s, scholars and development banks have recognized the link between judicial institutions and economic growth. This thesis proposes to explore the role of judicial institutions in the performance of economies and questions whether enhancing judicial institutions can result in enhancing economic development in developing countries. Since the 1990s development banks have explored the role of judicial institutions in the quest for economic development. Both the World Bank and the International Monetary Fund (IMF) have done this through the pursuit of judicial reform efforts in countries with ailing economies. The focus has been on improving the efficiency of the …

Would United States Judges Benefit From More Graduate Training?, Nancy Joseph

Duke Law Master of Judicial Studies Theses

In the United States, there is no degree or training required to become a judge. On-the-job education primarily consists of orientation programs and updates on substantive and procedural law. Although these programs serve an important need, they are generally of limited duration and scope, taught by fellow judges, and are not degree programs. Two notable exceptions are the now-defunct University of Virginia Graduate Program for Judges, which offered an LL.M. in judicial process for sitting appellate judges and the Duke University School of Law’s LL.M. in judicial studies—also for sitting judges. Do judges benefit from such degree programs? There has …

Forensics And Fallibility: Comparing The Views Of Lawyers And Jurors, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a trial. As the Supreme Court has put it: “criminal justice today is for the most part a system of pleas, not a system of trials.” However, a CSI effect could be more consequential if it affects how criminal lawyers assess forensic evidence when they negotiate pleas …

The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability And The Yates Memo, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr.

Faculty Scholarship

This purpose of this essay is to critique a 2015 report entitled Mind the Gap: The Lack of Accountability for Killer Robots by Human Rights Watch (HRW) produced with the assistance of the Harvard Law School’s International Human Rights Clinic (IHRC). The HRW/IHRC paper attempted to establish that autonomous weapons should be banned because, they claim, “neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous systems.” Contrary to HRW/IHRC assertions, this article maintains that although no one can “guarantee” accountability, there are sufficient legal tools to do so …

Detoxing The Child Welfare System, Allison E. Korn

Faculty Scholarship

This Article considers the varying reasons why drug policies informing child welfare interventions are not evolving as part of the drug policy reform movement, which has successfully advocated for initiatives that decrease mass incarceration, end mandatory minimums, and decriminalize or legalize marijuana use and possession. Many existing child welfare laws and policies that address parental drug use rely on the premise that prenatal exposure to a controlled substance causes inevitable harm to a child. Furthermore, they presume that any amount of drug use by a parent places a child in imminent danger, or is indicative of future risk of harm. …

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West

Faculty Scholarship

No abstract provided.

Silence, Confessions, And The New Accuracy Imperative, Lisa Kern Griffin

Duke Law Journal

Silence is both overpriced and underrated. This Article assesses the status of silence in light of renewed attention to reliability in criminal procedure. First, it considers the meaning of silence, both outside of the criminal justice process and within it. The Article then describes how silence can safeguard the context of confessions by making space for suspects to choose or reject engagement while shielding the content of statements from government manipulation. This account seeks to advance the discussion about protecting silence beyond the debate as to whether it advantages the innocent or the guilty. Empirical developments concerning wrongful convictions establish …

Why Plea Bargains Are Not Confessions, Brandon L. Garrett

Faculty Scholarship

Is a plea bargain a type of confession? Plea bargaining is often justified as, at its core, a process involving in-court confession. The U.S. Supreme Court's early decisions approved plea bargains as something "more than a confession which admits that the accused did various acts. " I argue in this Article that plea bargains are not confessions-they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime--a legally sufficient admission to be sure, but often not under oath, and often not supported by any extensive factual record. Because plea bargains …

Neuroscience And Behavioral Genetics In Us Criminal Law: An Empirical Analysis, Nita A. Farahany

Faculty Scholarship

The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Yet, criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Rare As Hens' Teeth: The New Geography Of The American Death Penalty, Brandon L. Garrett

Faculty Scholarship

Today, only a few dozen scattered counties actually impose death sentences, supporting the death penalty’s arbitrariness.

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Faculty Scholarship

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Elections, Ideology, And Turnover In The U.S. Federal Government, Alexander D. Bolton, John De Figueiredo, David E. Lewis

Faculty Scholarship

A defining feature of public sector employment is the regular change in elected leadership. Yet, we know little about how elections influence public sector careers. We describe how elections alter policy outputs and disrupt the influence of civil servants over agency decisions. These changes shape the career choices of employees motivated by policy, influence, and wages. Using new Office of Personnel Management data on the careers of millions of federal employees between 1988 and 2011, we evaluate how elections influence employee turnover decisions. We find that presidential elections increase departure rates of career senior employees, particularly in agencies with divergent …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in …

The Metamorphosis Of Corporate Criminal Prosecutions, Brandon L. Garrett

Faculty Scholarship

Corporate criminal enforcement has exploded in this country. Billion dollar fines are now routine across a range of industries, where they were unimaginable a decade ago. We have federal prosecutors and the Department of Justice, together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice. Yet deep concerns remain that corporate prosecution settlements offer lenient and non-transparent deals that fail to hold either the corporations or the culpable individuals adequately accountable. Now, the DOJ has begun to rethink the evolving corporate prosecution approach through the adoption …

The Myth Of The Presumption Of Innocence, Brandon L. Garrett

Faculty Scholarship

James Q. Whitman, in his deeply comparative new article, describes the American criminal justice system, in contrast with continental and inquisitorial systems, as more focused on the danger of innocent persons being arrested and convicted. In this Response, I respond by questioning the comparison on both sides of the equation, not to disagree with its utility or its contours, but because I admire the project and seek to elaborate here on Whitman’s deep concern with unpacking the status of the presumption of innocence and that of mercy. I describe how the American presumption of innocence is more of an ideal …

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.

Volume 99, Number 3 (2015)

Judicature

No abstract provided.

"A System Appallingly Out Of Balance": Morgan V. State And The Rights Of Defendants And Victims In Sexual Assault Prosecutions, Daniel E. Doty

Alaska Law Review

In a series of three cases that culminate with Morgan v. State, Alaska's courts established a unique protection for defendants in sexual assault cases. This protection, which allows such defendants to attack their victims in court with previous reports of sexual assault that did not result in prosecution, is not afforded to defendants in other cases and is based on a dubious "general principle" that the credibility of sexual assault victims has "special relevance." The protection is problematic in several ways: it is grounded in erroneous stereotypes about the victims of sex crimes; it is detrimental to victims and …

Rethinking Janus: Preserving Primary-Participant Liability In Sec Antifraud Enforcement Actions, Greg Gaught

Duke Law Journal

The Securities and Exchange Commission relies heavily on the securities laws’ antifraud provisions in fulfilling its role as watchdog of the U.S. securities markets. But the Supreme Court’s decision in Janus Capital Group, Inc. v. First Derivative Traders has frustrated the SEC’s efforts to keep fraud at bay. There the Court drastically narrowed the scope of actors who can qualify as primary participants in misrepresentations perpetrated in connection with the purchase or sale of securities under Rule 10b-5(b). This Note argues that Janus’s holding creates an incongruence in the SEC’s ability to enforce the securities laws’ misrepresentation provisions, with …

Predicting Outcomes In Investment Treaty Arbitration, Susan D. Franck, Lindsey E. Wylie

Duke Law Journal

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …