Digital Commons Network^™

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young, Nita Farahany, Gail Heriot, Ilya Somin

Faculty Scholarship

No abstract provided.

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

For-Profit Public Enforcement, Margaret H. Lemos, Max Minzner

Faculty Scholarship

This Article investigates an important yet undertheorized phenomenon: financial incentives in public enforcement. Each year, public enforcers assess billions of dollars in penalties and other financial sanctions for violations of state and federal law. Why? If the awards in question were the result of private lawsuits, the answer would be obvious. We expect that private enforcers—the victims of law violations and their fee-seeking attorneys—will attempt to maximize financial recoveries. Record recoveries come as no surprise in private class actions, for example. But dollar signs are harder to explain in the context of public enforcement. Unlike private attorneys, public enforcers are …

Is The White Collar Offender Privileged?, Samuel W. Buell

Duke Law Journal

Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed. Law and practice of sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges in white collar cases easier to bring and harder to defend against than in other cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure …

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …

Do Racial Disparities Exist During Pretrial Decisionmaking? Evidence From North Carolina, Guangya Liu, Chloe Johnson, Neil Vidmar

Faculty Scholarship

Racial Disparities in the Criminal Justice System are well documented in that minority defendants are over-represented compared with white defendants. The present authors argue that it is crucial to study the pretrial stages because they are a pivotal point in the criminal justice process continuum and racial disparities may begin to take root at an early stage of the process.

We find some evidence of racial disparities in pretrial decisionmaking. The type of bond assigned differs by race. Black defendants who were unable to post bond spent more days in jail, compared to white counterparts. However, race is not a …

The Banality Of Wrongful Executions, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness …

Accuracy In Sentencing, Brandon L. Garrett

Faculty Scholarship

A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a "miscarriage of justice"-- that is, a claim of innocence. The Supreme Court's miscarriage of justice standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from "plain error" review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post-conviction statute for federal prisoners, and the "Savings Clause" that permits …

Alaska Natives And American Laws, By David S. Case And David A. Voluck, Troy A. Eid

Alaska Law Review

No abstract provided.

Pretext Searches And Seizures: In Search Of Solid Ground, Jeff D. May, Rob Duke, Sean Gueco

Alaska Law Review

Despite numerous attempts to subject the use of pretext law enforcement stops to Alaska Constitutional scrutiny, the issue has never been thoroughly reviewed. Alaska courts currently allow pretext investigative stops so long as a reasonable officer following permissible police practices could have made the stop for the proffered reason. This is a minority position, inconsistent with federal law which deems pretext motivations constitutionally irrelevant. It is also far less protective of individual rights than an outright ban on officer pretext. This reasonable officer standard, however, offers some advantages over banning all types of pretext. This Article explores Alaska's historical treatment …

Cell Phones, Police Recording, And The Intersection Of The First And Fourth Amendments, Conor M. Reardon

Duke Law Journal

In a recent spate of highly publicized incidents, citizens have used cell phones equipped with video cameras to record violent arrests. Oftentimes they post their recordings on the Internet for public examination. As the courts have recognized, this behavior lies close to the heart of the First Amendment.

But the Constitution imperfectly protects this new form of government monitoring. Fourth Amendment doctrine generally permits the warrantless seizure of cell phones used to record violent arrests, on the theory that the recording contains evidence of a crime. The Fourth Amendment inquiry does not evaluate a seizing officer's state of mind, permitting …

Shaping The Success Of Social Impact Bonds In The United States: Lessons Learned From The Privatization Of U.S. Prisons, Shifali Baliga

Duke Law Journal

American government officials are starting to experiment with a novel government-funding and privatization structure known as a social impact bond ("SIB"). An SIB is a contract between a government agency and a private entity in which the government agrees to pay the private entity an agreed-upon sum only if it can meet certain goals or outcomes. Currently, SIBs exist both globally and domestically, and are targeted to solve perpetual social ills such as the high homelessness and recidivism rates plaguing certain communities.

By analogizing the problems facing private prisons to the potential problems facing the use of SIBs, this Note …

Law, Social Movements, And The Political Economy Of Domestic Violence, Deborah M. Weissman

Duke Journal of Gender Law & Policy

This article uses the occasion of the 2013 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have circumscribed the scope of VAWA and the dominant approach to domestic violence. This article seeks to explore the relationship between domestic violence advocacy and feminist theory, which has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. Additionally, it argues for a reexamination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as a context for …

The Right To Challenge The Accuracy Of Breath Test Results Under Alaska Law, Paul A. Clark

Alaska Law Review

Section 28.90.020 of the Alaska Statutes provides that in prosecutions for drunk driving, "if an offense described under this title requires that a chemical test of a person's breath produce a particular result, and the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance." This provision appears to prohibit the defense from calling into question the accuracy of a breath test by introducing evidence of uncertainty inherent in the testing procedure. The statute is problematic because due process requires that …

Maryland V. King: The Fourth Amendment Spirals Down The Double Helix, Sitara V. Witanachchi

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Maryland v. King, in which the Court may decide whether requiring an arrestee to submit to a buccal swab for identification purposes violates the arrestee's privacy interests under the Fourth Amendment.

Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Duke Law Journal

No abstract provided.

The Effects Of The Offender’S Race, Ethnicity, And Sex On Federal Sentencing Outcomes In The Guidelines Era, Cassia Spohn

Law and Contemporary Problems

No abstract provided.

Moderate And Non-Arbitrary Sentencing Without Guidelines: The German Experience , Tatjana Hörnle

Law and Contemporary Problems

No abstract provided.

Sentencing Guidelines In England And Wales: Recent Developments And Emerging Issues , Julian V. Roberts

Law and Contemporary Problems

No abstract provided.

Federal White Collar Sentencing In The United States: A Work In Progress , Daniel Richman

Law and Contemporary Problems

No abstract provided.

Foreword , Oren Gazal-Ayal

Law and Contemporary Problems

No abstract provided.

Lessons From Two Failures: Sentencing For Cocaine And Child Pornography Under The Federal Sentencing Guidelines In The United States , Carol S. Steiker

Law and Contemporary Problems

No abstract provided.

Principles, Pragmatism, And Politics: The Evolution Of Washington State’S Sentencing Guidelines, Kate Stith

Law and Contemporary Problems

No abstract provided.

Do Sentencing Guidelines Increase Prosecutorial Power? An Empirical Study , Oren Gazal-Ayal, Hagit Turjeman, Gideon Fishman

Law and Contemporary Problems

No abstract provided.

Determinate Sentencing And American Exceptionalism: The Underpinnings And Effects Of Cross-National Differences In The Regulation Of Sentencing Discretion, Ely Aharonson

Law and Contemporary Problems

No abstract provided.

Sentencing In Germany: Explaining Long-Term Stability In The Structure Of Criminal Sanctions And Sentencing, Hans-Jörg Albrecht

Law and Contemporary Problems

No abstract provided.

Is Sentencing Reform A Lost Cause? A Historical Perspective On Conceptual Problems In Sentencing Research, Leslie Sebba

Law and Contemporary Problems

No abstract provided.

Pursuing Consistency In An Individualistic Sentencing Framework: If You Know Where You’Re Going, How Do You Know When You’Ve Got There?, Sarah Krasnostein, Arie Freiberg

Law and Contemporary Problems

No abstract provided.

Sentencing Guidelines In England And Wales: Missed Opportunities? , Mandeep K. Dhami

Law and Contemporary Problems

No abstract provided.