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The Bernstein Memorial Lecture: The First Six Years, Ralf Michaels, Stephen Bornick, Jonathan Dalton White

Faculty Scholarship

CICLOPs, the Center for International & Comparative Law Occasional Papers, could not be launched with a better issue than one dedicated to Duke Law's named lecture series in the field, the Annual Herbert L. Bernstein Memorial Lecture in Comparative Law. Herbert Bernstein was Duke's much-beloved professor of comparative law. The lecture series, established in Prof. Bernstein’s honor after his sudden death in 2001, has drawn leading scholars from all around the world to speak at Duke Law School on comparative law. This first issue of CICLOPs contains the text of the first six lectures, some of them previously published in …

No Future Without (Personal) Forgiveness: Re-Examining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Faculty Scholarship

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

Rethinking The Identity And Role Of United States Attorneys, Sara Sun Beale

Faculty Scholarship

This article considers the proper role of politics in federal prosecutions, and how that bears on the position of the U.S. Attorney. First, the article sets forth an account of the problems disclosed by investigations into the Bush Justice Department, including the controversial firing of nine U.S. Attorneys and claims that particular prosecutions were politically motivated. It then explores the historical development of the role of the U.S. Attorneys, their relationship to the Attorney General and the Department of Justice, and their role in the contemporary federal criminal justice system.

With that background, the article considers the question whether there …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation James E. Coleman, Jr., James E. Coleman Jr., Angela Davis, Michael Gerhardt, K.C. Johnson, Lyrissa Lidsky, Howard M. Wasserman

Faculty Scholarship

This panel took place at the 2008 Annual Meeting of the Southeastern Association of Law Schools ("SEALS") in July 2008 in West Palm Beach, Florida

You’Ve Come A Long Way, Baby: Two Waves Of Juvenile Justice Reforms As Seen From Jena, Louisiana, Sara Sun Beale

Faculty Scholarship

This article describes the origins and impact of two modern reforms that dramatically rewrote the law governing the prosecution of juvenile offenders: the Warren Court’s due process decisions and the juvenile justice legislation of the 1990s. Beginning with the prosecution of Mychal Bell, who was one of the Jena 6, the article provides a broader historical and analytical framework to assess the procedural protections available to juveniles charged with serious offenses, particularly the adequacy of the remedies to challenge prosecutorial discretion and disparate treatment by the prosecution.

The article first describes the key role race played in the Warren Court’s …

After Guantanamo: War, Crime, And Detention, Madeline Morris, Frances A. Eberhard, Michael A. Watsula

Faculty Scholarship

Neither the law of war nor the criminal law, alone or in combination, provides an adequate legal structure for responding to the most serious threats posed by Al Qaeda and similar groups. After identifying the limits of the criminal law and the law of war for these purposes, this article outlines a comprehensive proposal for counterterrorism prosecution and detention policy. Appended to the article is the draft Counterterrorism Detention, Treatment and Release Act. The legislation proposed: 1) defines the category of persons to be subject to detention; 2) delineates procedures for identifying individuals falling within that category; 3) provides a …

Essay: Conventions In Science And In The Courts: Images And Realities, Jerome R. Ravetz

Law and Contemporary Problems

No abstract provided.

Science, Law And The Expert Witness, Joseph Sanders

Law and Contemporary Problems

Expert witnessing is a particularly useful place to observe the clash of legal and scientific conventions because it is here that one group of people (scientific experts) who are integrated into one set of conventions are challenged by the expectations of a different set of conventions. Here, Sanders looks at how legal conventions affect the behavior of expert witnesses when they appear in court in both criminal and civil cases. He also reviews differences in scientific and legal conventions as they apply to expert knowledge and discusses two central reasons for these differences: adversarialism and closure.

Merton And The Hot Tub: Scientific Conventions And Expert Evidence In Australian Civil Procedure, Gary Edmond

Law and Contemporary Problems

Recently in Australia, common-law judges began to modify the way expert evidence is prepared and presented. Judges from a range of civil jurisdictions have conscientiously sought to reduce expert partisanship and the extent of expert disagreement in an attempt to enhance procedural efficiency and improve access to justice. One of these reforms, concurrent evidence, enables expert witnesses to participate in a joint session with considerable testimonial latitude. This represents a shift away from an adversarial approach and a conscientious attempt to foster scientific values and norms. Here, Edmond describes how changes to Australian civil procedure, motivated by judicial concerns about …

Reaching Out To The International Community: Civil Lawsuits As The Common Ground In The Battle Against Terrorism, Debra M. Strauss

Duke Journal of Comparative & International Law

No abstract provided.

Money, Politics, And Impartial Justice, Joanna M. Shepherd

Duke Law Journal

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States' judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, …

Counting Offenses, Jeffrey M. Chemerinsky

Duke Law Journal

Is a criminal defendant who discharges a weapon five times in rapid succession guilty of one crime or several crimes? This question of how to divide charges has vexed legal philosophers and Supreme Court Justices. It is a question of profound importance, but one that legal scholarship has seldom addressed. The answer has an impact on each stage of a criminal justice prosecution. The difference between one charge and multiple charges can affect the likelihood of a plea bargain, the strategy for trial, and, if the defendant is convicted, the length of a prison sentence. This Note, citing numerous examples …

Insincere And Involuntary Public Apologies, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

When Parent’S Fight: Alaska’S Presumption Against Awarding Custody To Perpetrators Of Domestic Violence, Lisa Bolotin

Alaska Law Review

No abstract provided.

The Newest Spectator Sport: Why Extending Victims’ Rights To The Spectators’ Gallery Erodes The Presumption Of Innocence, Sierra Elizabeth

Duke Law Journal

No abstract provided.

Victims’ Rights In An Adversary System, Erin C. Blondel

Duke Law Journal

The victims' rights movement argues that because the outcome of criminal prosecutions affects crime victims, the justice system should consider their interests during proceedings. In 2004, Congress passed the Crime Victims' Rights Act (CVRA), giving victims some rights to participate in the federal criminal justice system. This Note probes both the theoretical assumptions and practical implications of the CVRA. It demonstrates that the victims' rights movement revisits a long-acknowledged tension between adversary adjudication and third-party interests. It shows, however, that American law has resolved this tension by conferring party or quasi-party status on third parties. Despite some pro-victims rhetoric, Congress …

Introduction, Kathryn Webb Bradley

Law and Contemporary Problems

No abstract provided.

Race To Judgment: Stereotyping Media And Criminal Defendants, Robert M. Entman, Kimberly A. Gross

Law and Contemporary Problems

No abstract provided.

Back To The Future—Questions For The News Media From The Past, Loren Ghiglione

Law and Contemporary Problems

No abstract provided.

Trial By Media: The Betrayal Of The First Amendment’S Purpose, Gavin Phillipson

Law and Contemporary Problems

No abstract provided.

Trying Cases In The Media: A Comparative Overview, Giorgio Resta

Law and Contemporary Problems

No abstract provided.

How Noninstitutionalized Media Change The Relationship Between The Public And Media Coverage Of Trials, Marcy Wheeler

Law and Contemporary Problems

No abstract provided.

The Duke Lacrosse Case And The Blogosphere, K. C. Johnson

Law and Contemporary Problems

No abstract provided.

Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry

Duke Law Journal

No abstract provided.

Mckithen V. Brown: Due Process And Post-Conviction Dna Testing, Elizabeth A. Laughton

Duke Law & Technology Review

When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right …

Recidivism In Alaska, Teresa W. Carns

Alaska Law Review Online Articles Forum

Recidivism data are a tool that can help policymakers determine how effectively a criminal justice system is working to protect the public. Such data can help answer whether the current system is appropriate, whether alternative methods could provide better results, and whether specialized programs such as therapeutic courts can help reduce recidivism rates. The Alaska Judicial Council published two reports in 2007 that sought to address these questions and more. This Comment has combined much of the data from these two reports in order to present them in a unified fashion, providing direct comparisons and contrasts where appropriate. The Council …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Professors Galle And Seidenfeld, Nina A. Mendelson

Duke Law Journal

No abstract provided.

Supranational Rulings As Judgments And Precedents, Ernest A. Young

Duke Journal of Comparative & International Law

No abstract provided.

Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer

Duke Journal of Constitutional Law & Public Policy

No abstract provided.