Digital Commons Network^™

Judicial Attention As A Scarce Resource: A Preliminary Defense Of How Judges Allocate Time Across Cases In The Federal Courts Of Appeals, Marin K. Levy

Faculty Scholarship

Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of …

Top Ten Reasons Sen. Gillibrand’S Bill Is The Wrong Solution To Military Sexual Assault, Charles J. Dunlap Jr.

Faculty Scholarship

Over the years Congress has made plenty of efforts to “improve” the military justice system for a variety of reasons, but few matters have generated more offerings than did the Pentagon’s report this past spring of an estimated 26,000 victims of “unwanted sexual contacts” in the armed forces. Some initiatives to address this very critical problem, like the bipartisan effort of Senators Barbara Boxer and Lindsey Graham, look promising; others, not so much.

However, none are as misguided as Sen. Kirsten Gillibrand’s proposal. Indeed, it is hard to think of a proposal that could be more wrong for the military, …

Remaining Silent After Salinas, Brandon L. Garrett

Faculty Scholarship

In its ruling last Term in Salinas v Texas, the Supreme Court further eroded what little remains of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. In this short piece for the University of Chicago Law Review's online Dialogue, I explore the Salinas decision and its implications. I argue that the result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions.

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

Validating The Right To Counsel, Brandon L. Garrett

Faculty Scholarship

This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the …

The Story Of Ewing: Three Strikes Laws And The Limits Of The Eighth Amendment Proportionality Review, Sara Sun Beale

Faculty Scholarship

In 1994 California enacted the nation's harshest "three strikes" law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing …

Dna Profiles, Computer Searches, And The Fourth Amendment, Catherine W. Kimel

Duke Law Journal

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citizens. Without judicial authorization, the government searches each of these profiles one-hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing. Yet, courts and scholars that have addressed DNA databasing have focused their attention almost exclusively on the constitutionality of the government's seizure of the biological samples from which the profiles are generated. This Note fills a gap in the scholarship by examining the Fourth …

Biometric Id Cybersurveillance, Margaret Hu

Faculty Scholarship

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Plenary Power Preemption, Kerry Abrams

Faculty Scholarship

No abstract provided.

Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Healing Memory, Ontological Intimacy, And U.S. Imprisonment: Toward A Christian Politics Of “Good Punishment” In Civil Society , James Logan

Law and Contemporary Problems

No abstract provided.

Foreword, John D. Inazu

Law and Contemporary Problems

No abstract provided.

Criminal Law Reform And Thepersistence Of Strict Liability, Darryl K. Brown

Duke Law Journal

Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute's Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens rea for every element of criminal …

Sexual Assault On College Campuses: Seeking The Appropriate Balance Between Due Process And Victim Protection , Matthew R. Triplett

Duke Law Journal

Peer sexual assault is a significant problem on American college and university campuses. On April 4, 2011, the Office for Civil Rights of the Department of Education sought to address this problem by issuing a new "Dear Colleague Letter" that provided enhanced guidance on how educational institutions should adjudicate such incidents. The letter has the perverse effect of complicating matters further by blurring the already fine line between victim protection and due process for the accused, and it exposes a potential liability trap for educational institutions. This Note explains why the law surrounding victim protection and due process is difficult …

The Innocence Effect, Oren Gazal-Ayal, Avishalom Tor

Duke Law Journal

Nearly all felony convictions—about 95 percent—follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty is overstated. We provide …

Prosecuting Domestic Violence After Giles: Why A Categorical Approach To The Forfeiture Doctrine Threatens Female Autonomy, Michael Vargas

Duke Journal of Gender Law & Policy

No abstract provided.

Toward A Comparative Approach To The Crime Of Genocide, Tatiana E. Sainati

Duke Law Journal

The annihilation of more than 1.5 million Cambodians at the hands of the Khmer Rouge is widely considered a quintessential case of genocide. Whether these atrocities meet the definition of genocide as a legal matter, however, remains unsettled. As of October 2012, the question of whether genocide occurred in Cambodia within the meaning of the 1948 United Nations Genocide Convention is pending before the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC will determine this question against the backdrop of an ongoing debate about the appropriate scope of the crime of genocide. This debate pits expansionists, who believe …

Introduction: Symposium On ‘Convicting The Innocent, Brandon L. Garrett

Faculty Scholarship

Examining what went wrong in the first 250 DNA exonerations was a sobering occupation, and I describe what I found in my book Convicting the Innocent, published by Harvard University Press in 2011. Still more haunting is the question of how many other wrongful convictions have not been uncovered and will never see the light of day. The New England Law Review has brought together a remarkable group of scholars who have each made leading contributions to the study of wrongful convictions from different disciplines and scholarly perspectives: Simon Cole, Deborah Davis, Gisli H. Gudjonsson, Richard Leo, and Elizabeth Loftus. …

Rule 82 & Tort Reform: An Empirical Study Of The Impact Of Alaska’S English Rule On Federal Civil Case Filings, Douglas C. Rennie

Alaska Law Review

Alaska is the only American state that employs a variation of the “English Rule,” whereby the losing party in a civil case must pay the prevailing party’s attorneys’ fees. In recent years, advocates of tort reform have praised Alaska’s Civil Rule 82 as a model for tort reform to help rid the overburdened courts of low merit claims. But does Rule 82 really reduce meritless litigation? This study compares civil case filings in the District of Alaska to a sample of other comparable federal district courts. Although filings in the District of Alaska were lower than the national average, they …

The Anchorage, Alaska Veterans Court And Recidivism: July 6, 2004 – December 31, 2010, Jack W. Smith

Alaska Law Review

In July 2004 Anchorage, Alaska started one of the first veterans courts in the United States. That court has now been in continuous operation for over seven years. This Comment briefly describes the steps taken to establish the Alaska Veterans Court and how the court operates. An overview of the characteristics of participants in and graduates from the court is provided, followed by statistics concerning the effect of the court on recidivism. Several potential future areas of study concerning this court are also identified. The Comment concludes by highlighting the importance of the court and by noting that the benefits …

Foreword, Samuel W. Buell, Lisa Kern Griffin

Law and Contemporary Problems

No abstract provided.

The Utility Of Predicting Dangerousness In The War On Terror, Catherine R. L. Lawson

Duke Journal of Comparative & International Law

No abstract provided.

Public Perceptions Of White Collar Crime Culpability: Bribery, Perjury, And Fraud, Stuart P. Green, Matthew B. Kugler

Law and Contemporary Problems

No abstract provided.

More Problems With Criminal Trials: The Limited Effectiveness Of Legal Mechanisms, Dan Simon

Law and Contemporary Problems

No abstract provided.

Intimate Partner Violence—Is There A Solution?, Diksha Munjal

Duke Journal of Gender Law & Policy

No abstract provided.

The Roles Of Phones And Computers In Threatening And Abusing Women Victims Of Male Intimate Partner Abuse , Joanne Belknap, Ann T. Chu, Anne P. Deprince

Duke Journal of Gender Law & Policy

No abstract provided.

A Cautionary Tale: Black Women, Criminal Justice, And Hiv , Gloria J. Browne-Marshall

Duke Journal of Gender Law & Policy

No abstract provided.

Forum Choice For Terrorism Suspects, Aziz Z. Huq

Duke Law Journal

What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …

Friendly, J., Dissenting, Michael Boudin

Duke Law Journal

No abstract provided.