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Implementing The Rights Revolution: Repeat Players And The Interpreting Of Diffuse Legal Messages, Charles R. Epp

Law and Contemporary Problems

No abstract provided.

Is It Wrong To Sue For Rape?, Tom Lininger

Duke Law Journal

The title of this Article poses a rhetorical question. Of course it is not improper to site a rapist. The act of rape qualifies as a tort in all fifty states. Rape causes egregious injuries, both physical and psychological. The Supreme Court regards rape as the ultimate violation of personal autonomy. Other than homicide, no act is more plainly tortious. Yet the criminal justice system is surprisingly hostile to civil suits by rape survivors. Judges in criminal cases virtually always allow impeachment of accusers with evidence of civil suits against the alleged assailants or third parties. This Article surveys every …

Paradigms Of Restraint, Erin Murphy

Duke Law Journal

Incapacitation of dangerous individuals has conventionally entailed the exercise of physical control over an actual body: the state confines the person in jail. But advances in technology have changed that convention. A variety of new technologies-such as GPS tracking bracelets, biometric scanners, online offender indexes, and DNA databases-give the government power to control dangerous persons without relying on any exertion of physical control. The government can track the location of a person in real time, receive remote notification that an individual has ingested alcohol, or electronically zone someone into a home or out of a public park. It can prove …

Repairing Family Law, Clare Huntington

Duke Law Journal

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void-and inaugurate a larger debate about the central role of emotion in family law-by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel guilt about …

The Continued Relevance Of The Irrelevance-Of-Motive Maxim, Michael T. Rosenberg

Duke Law Journal

The irrelevance-of-motive maxim-the longstanding principle that a defendant's motives are irrelevant to criminal liability-has come under attack. Critics of this maxim claim that "motives," under any plausible conception of the term, are in fact relevant in the criminal law. According to these critics, the only way to defend the truth of the irrelevance-of-motive maxim is to render it true by definition, by defining motive as the subcategory of intentions that are irrelevant to criminal liability. This Note defends the irrelevance-of-motive maxim by applying a plausible conception of "motive" that conforms to the historical meaning of the term. With the proper …

Court-Ordered Restrictions On Trial Participant Speech, Jonathan Eric Pahl

Duke Law Journal

This Note considers court-ordered limitations on the extrajudicial speech of trial participants in high-profile cases. After providing a history of Supreme Court decisions, informative though not dispositive of the topic, it presents the divergent approaches lower courts take when faced with trial participants' extrajudicial speech. The Note highlights the extreme legal uncertainty facing trial participants who desire to speak publicly about court proceedings. Finally, it concludes that courts would better balance First Amendment and fair trial values by rejecting the reasonable likelihood of prejudice standard.

Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre

Faculty Scholarship

No abstract provided.

Claiming Innocence, Brandon L. Garrett

Faculty Scholarship

The advent of DNA testing technology almost two decades ago transformed how courts review claims of innocence. Our system discarded many of the rules of finality that traditionally barred most postconviction claims of innocence. In recent years almost every state enacted post-conviction DNA statutes, which I survey here. Yet our criminal system still remains at a crossroads and meritorious claims of innocence continue to face great obstacles. State statutes typically exclude entire categories of convicts who might convincingly prove their innocence and state courts often deny access to DNA testing. Meanwhile, the Supreme Court has yet to adopt a constitutional …

The Upside Of Overbreadth, Samuel W. Buell

Faculty Scholarship

Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors …

Time For A Twenty-First Century Justice Department, Samuel W. Buell

Faculty Scholarship

This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season. The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools of …

Prosecuting Aggression, Noah Weisbord

Faculty Scholarship

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …

The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer

Faculty Scholarship

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …

Delegating To International Courts: Self-Binding Vs. Other-Binding Delegation, Karen J. Alter

Law and Contemporary Problems

Alter highlights the diverse nature of international delegations to courts. She argues that the roles and tasks delegated to international courts increasingly mimic in form and content the broad variety of tasks delegated to courts in liberal democracies, but that delegating these tasks to international courts is fundamentally different than delegating them to domestic courts because of the implications for national sovereignty. Whereas international courts were initially established to be dispute-resolution bodies, they now also perform administrative review, enforcement, and even constitutional review. Alter explains how each of these judicial roles binds other actors, binds states, or both.

Judging Innocence, Brandon L. Garrett

Faculty Scholarship

This empirical study examines for the first time how the criminal justice system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal …

Is The Office Closed? The Role Of The Office Of Victims’ Rights After Cooper V. District Court, Richard Allen

Alaska Law Review

No abstract provided.

Cunningham V. California, Christopher P. Raab

Duke Journal of Constitutional Law & Public Policy Sidebar

In Cunningham v. California, the United States Supreme Court voted 6-3 to invalidate California's determinate sentencing law ("DSL") as violative of the Sixth and Fourteenth Amendments. The Court held that, notwithstanding the California Supreme Court's determination to the contrary, the DSL conflicted with prior Supreme Court precedent "by placing sentence-elevating factfinding within the judge's province," thereby "violat[ing] a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments."

Reining In The Minister Of Justice: Prosecutorial Oversight And The Superseder Power, Abby L. Dennis

Duke Law Journal

Virtually immune from judicial sanction, professional discipline, and civil liability, prosecutors enjoy limitless, unmonitored, and, for the most part, unreviewable power. This power and insulation from review invite abuse and public mistrust, shaking confidence in the criminal justice system. With the system in need of a means of curbing errant prosecutors and restoring public confidence, this Note explores a neglected mechanism of prosecutorial oversight-the superseder power-and argues for increased use of this oversight mechanism, coupled with explicit guidelines for its use and a public review process.

A Measure Of Harmony: The Orchestration Of Rule 32(H) With The “Discordant Symphony” Of Booker, Leeann Rosnick

Duke Law Journal

Sentencing in the post-Booker world presents a variety of challenges and uncertainties for the courts, Congress, and the general public. This Note examines one such challenge, considering the difficulties surrounding Federal Rule of Criminal Procedure 32(h) in light of Booker. The Note develops the history of both Rule 32(h) and the Booker decision, analyzes changes and suggested amendments to Rule 32(h), and concludes that the conflict between Rule 32(h) and Booker can be easily resolved with slight alterations to the language of Rule 32(h).

The Role And Responsibility Of The Court, David F. Levi, Gary A. Hengstler, Leroy F. Millette, Jr., W. Terry Ruckriegle, David A. Sellers, Judge Reggie B. Walton

Court of Public Opinion

In the final panel of the conference, three judges and two media relations officials discuss the role of the court in protecting the judicial process. The three judges presided over a plethora of high-profile cases including that of the D.C. sniper, John Wayne Bobbitt, Kobe Bryant, and Lewis "Scooter" Libby and they share their experiences with those cases and the methods they used to ensure fair trials. The media relations officials analyzed the changes in the media landscape and what appear to be some effective solutions for providing the media with information, but at the same time protecting the trial …

The Role And Responsibility Of The Public, Christopher H. Schroeder, Scott G. Bullock, Robert Entman, Kimberly A. Gross, Steven R. Shapiro

Court of Public Opinion

It's the title of the conference—the court of public opinion—and the topic of this panel. Professor Christopher Schroeder of Duke Law School is joined by media and public policy professor Kim Gross, senior attorney for the Institute for Justice Scott Bullock, and litigation director of the ACLU Steve Shapiro to contemplate both the influence of the media on public opinion and ways to use the media as an advocacy tool.

Gross discusses her research into the influence of media coverage on the public, followed by Bullock and Shapiro who explain the ways in which public interest law may choose to …

A Conversation: Living Through Lacrosse, Erwin Chemerinsky, John F. Burness, James E. Coleman Jr., Latisha Gotell Faulks, Paul H. Haagen, Sergio Quintana, Emily Rotberg

Court of Public Opinion

Living through Lacrosse featured a panel of those involved directly with the Duke lacrosse incident, ranging from the senior vice president for public affairs and government relations of Duke University to a former Duke student who was serving as a staff member of the Duke Chronicle in 2007.

Members of the panel assessed what happened during the course of the incident and then discussed what could be learned from this case and what might have been done differently.

Questions/themes/discussion topics

• What were the individual roles of the panelists during the lacrosse incident?
• In hindsight, what would the panelists have done …

Comparative Law Approaches To Media Access To Court Proceedings, Francesca E. Bignami, Lucy Dalglish, Peter M. Jacobsen, Gavon Phillipson, Giorgio Resta

Court of Public Opinion

A particularly interesting panel, this one examines media access, pretrial publicity, and the presumption of innocence, comparing the laws and practices in the United States to those in several European countries and Canada.

The panelists speak to the national laws of continental Europe and case law of the European Court of Human Rights, law and practices in the United Kingdom, Canada, and the United States. Apparent differences emerge in both trial procedures and media actions and expectations in these various countries.

Questions/themes/discussion topics

• Comparing U.S. law to the law of other countries concerning media access to trials, pretrial information that …

The Role And Responsibility Of Prosecutors, Thomas B. Metzloff, R. Michael Cassidy, Colm F. Connolly, Marsha Goodenow, Loretta E. Lynch

Court of Public Opinion

In this panel, the discussion moves form the abstract to the very specific. Moderator Thomas Metzloff, professor of law at Duke University School of Law, asks the panelists to analyze the actions leading to the disbarment of former Durham District Attorney Mike Nifong.

The speakers, all current or former prosecutors, detail personal experiences dealing with reporters, and discuss the guidelines, written and unwritten, which govern such interaction.

Questions/themes/discussion topics

• The press as a tool to communicate with the public
• The press as a watchdog
• Training of young prosecutors in press interaction
• The effect of the U.S. Supreme Court's 2002 decision …

The Role And Responsibility Of Defense Counsel, Robert P. Mosteller, Mark Geragos, Harold A. Haddon, Laurie L. Levenson, Michael E. Tigar

Court of Public Opinion

How does a defense attorney's role change when defending a high-profile client? Beyond traditional legal defense, must a modern defense attorney seek to protect a client's public image? When speaking with the media, what rules, if any, should constrain a defense attorney's behavior? Does media coverage affect the fairness of a trial?

These are some of the questions dealt with in Panel #4: The Role Of Defense Counsel, moderated by Robert Mosteller, and featuring Laurie Levenson, Michael Tigar and Harold Haddon.

Laurie Levenson begins the discussion by outlining some of the rules governing attorney behavior in the media, with special …

The Role And Responsibility Of Traditional Media, Sara Sun Beale, Sylvia Adcock, Loren Ghiglione, Malcolm Moran, Eric Lieberman, Ari Shapiro, William Raspberry

Court of Public Opinion

When high profile legal issues arise, the traditional media attempts a familiar balancing act, weighing ethical obligations of fairness, accuracy and objectivity against the necessity for timely and competitive reporting.

This mission, in itself, requires careful execution. But there is significantly more pressure in recent years, due to a voracious 24-hour news cycle, competition by new media entities that have high-tech speed and occasionally choose to remain unfettered by journalistic ethics, and challenging economic realities.

In Panel #1: The Role and Responsibility of Traditional Media, moderator Sara Beale, the Charles L. B. Lowndes Professor of Law at Duke University …

National Lesbian And Gay Law Foundation Lavender Law 2006 “Rum, Sodomy, And The Lash”: What The Military Thrives On And How It Affects Legal Recruitment And Law Schools, Sharra E. Greer, Elizabeth L. Hillman, Diane H. Mazur, Warrington S. Parker Iii

Duke Journal of Gender Law & Policy

No abstract provided.

All Eyes On Us: A Comparative Critique Of The North Carolina Innocence Inquiry Commission, Jerome M. Maiatico

Duke Law Journal

No abstract provided.

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting -- the Data Retention Directive. Based on a detailed examination of the Directive's legislative …

Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives …

The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman

Faculty Scholarship

No abstract provided.