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Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast Jan 2006

Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.


Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow Jan 2006

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Faculty Scholarship

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …


Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr. Jan 2006

Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.

Faculty Scholarship

No abstract provided.


An Excuse-Centered Approach To Transitional Justice, David Gray Jan 2006

An Excuse-Centered Approach To Transitional Justice, David Gray

Faculty Scholarship

"Transitional justice" asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those "most responsible," amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …


Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet Jan 2006

Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet

Faculty Scholarship

Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on …


The News Media’S Influence On Criminal Justice Policy: How Market Driven News Promotes Punitiveness, Sara Sun Beale Jan 2006

The News Media’S Influence On Criminal Justice Policy: How Market Driven News Promotes Punitiveness, Sara Sun Beale

Faculty Scholarship

This Article argues that commercial pressures are determining the news media's contemporary treatment of crime and violence, and that the resulting coverage has played a major role in reshaping public opinion, and ultimately, criminal justice policy. The news media are not mirrors, simply reflecting events in society. Rather, media content is shaped by economic and marketing considerations that frequently override traditional journalistic criteria for newsworthiness. This Article explores local and national television's treatment of crime, where the extent and style of news stories about crime are being adjusted to meet perceived viewer demand and advertising strategies, which frequently emphasize particular …


Affirming Michigan’S Action: The Michigan Journal Of Race & Law's Response To Dr. Carcieri's Grutter V. Bollinger And Civil Disobedience, Adam Blumenkrantz, Jason Belmont Conn, Amrita Mallik, Michael Murphy Jan 2006

Affirming Michigan’S Action: The Michigan Journal Of Race & Law's Response To Dr. Carcieri's Grutter V. Bollinger And Civil Disobedience, Adam Blumenkrantz, Jason Belmont Conn, Amrita Mallik, Michael Murphy

Faculty Scholarship

No abstract provided.


The Blaming Function Of Entity Criminal Liability, Samuel W. Buell Jan 2006

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Faculty Scholarship

Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …


Pretrial Publicity, Presumed Prejudice, And Change Of Venue In Alaska: Public Opinion Surveys As A Tool To Measure The Impact Of Prejudicial Pretrial Publicity, Rich Curtner, Melissa Kassier Dec 2005

Pretrial Publicity, Presumed Prejudice, And Change Of Venue In Alaska: Public Opinion Surveys As A Tool To Measure The Impact Of Prejudicial Pretrial Publicity, Rich Curtner, Melissa Kassier

Alaska Law Review

No abstract provided.


State Punishment And Private Prisons, Sharon Dolovich Dec 2005

State Punishment And Private Prisons, Sharon Dolovich

Duke Law Journal

To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly-run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This "comparative efficiency" approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility …


Appeal Waivers And The Future Of Sentencing Policy, Nancy J. King, Michael E. O'Neill Nov 2005

Appeal Waivers And The Future Of Sentencing Policy, Nancy J. King, Michael E. O'Neill

Duke Law Journal

This paper is the first empirical analysis of appeal waiversclauses in plea agreements by which defendants waive their rights to appellate and postconviction review. Based on interviews and an analysis of data coded from 971 randomly selected cases sentenced under the United States Sentencing Guidelines, the study's findings include (1) in nearly two-thirds of the cases settled by plea agreement, the defendants waived their rights to review; (2) the frequency of waiver varies substantially among the circuits, and among districts within circuits; (3) the government appears to provide some sentencing concessions more frequently to defendants who sign waivers than to …


Proportionality As A Principle Of Limited Government, Alice Ristroph Nov 2005

Proportionality As A Principle Of Limited Government, Alice Ristroph

Duke Law Journal

This Article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory-an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in …


Political Trials In Domestic And International Law, Eric A. Posner Oct 2005

Political Trials In Domestic And International Law, Eric A. Posner

Duke Law Journal

Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …


Lost In Translation: The Need For A Formal Court Interpreter Program In Alaska, T. Caroline Briggs-Sykes Jun 2005

Lost In Translation: The Need For A Formal Court Interpreter Program In Alaska, T. Caroline Briggs-Sykes

Alaska Law Review

No abstract provided.


New Jersey’S Adult Internet Luring Statute: An Appropriate Next Step?, John W. Lomas Jr. Jun 2005

New Jersey’S Adult Internet Luring Statute: An Appropriate Next Step?, John W. Lomas Jr.

Duke Law & Technology Review

New Jersey recently enacted legislation prohibiting the use of the Internet to lure or entice someone to a location with the purpose of committing a crime with or against that person or some other person. Most states have similar laws pertaining to pedophiles, but this is the first adult Internet luring statute. State measures to regulate the Internet, even in the context of criminal justice, will likely face constitutional challenge since the Internet has become such a critical vehicle for both protected speech and interstate commerce. Furthermore, while the use of the Internet in the commission of crimes against other …


A Penny For Their Thoughts: Draft Resistance At The Poston Relocation Center, Eric L. Muller Apr 2005

A Penny For Their Thoughts: Draft Resistance At The Poston Relocation Center, Eric L. Muller

Law and Contemporary Problems

Muller examines the prosecution and sentencing of Japanese Americans who resisted the draft of WWII from their internment camps. Although the hundreds of cases were almost identical, approaches to justice and sentencing of offenders varied widely.


Equal Citizenship At Ground Level: The Consequences Of Nonstate Action, Kenneth L. Karst Apr 2005

Equal Citizenship At Ground Level: The Consequences Of Nonstate Action, Kenneth L. Karst

Duke Law Journal

No abstract provided.


Lessons From Avena: The Inadequacy Of Clemency And Judicial Proceedings For Violations Of The Vienna Convention On Consular Relations, Linda E. Carter Apr 2005

Lessons From Avena: The Inadequacy Of Clemency And Judicial Proceedings For Violations Of The Vienna Convention On Consular Relations, Linda E. Carter

Duke Journal of Comparative & International Law

No abstract provided.


Gender Bias In North Carolina’S Death Penalty, Elizabeth Marie Reza Apr 2005

Gender Bias In North Carolina’S Death Penalty, Elizabeth Marie Reza

Duke Journal of Gender Law & Policy

No abstract provided.


The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins Apr 2005

The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins

Duke Law Journal

No abstract provided.


Assessing The Counterfactual: The Efficacy Of Drug Interdiction Absent Racial Profiling, Katherine Y. Barnes Mar 2005

Assessing The Counterfactual: The Efficacy Of Drug Interdiction Absent Racial Profiling, Katherine Y. Barnes

Duke Law Journal

This Article investigates the costs and benefits of racial profiling in the context of drug interdiction. I begin by reviewing the empirical economic and civil rights literature regarding the existence and rationality of racial profiling and then build an explicit model of a trooper's decision to search a stopped vehicle. Estimating the model using stop and search data from a portion of Interstate 95 in Maryland, I find that the Maryland State Police use the motorist's race as a factor in deciding which stopped vehicles to search. This result persists even after controlling for many other descriptive variables that impact …


“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller Jan 2005

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, …


Innocence, Harmless Error, And Federal Wrongful Conviction Law, Brandon L. Garrett Jan 2005

Innocence, Harmless Error, And Federal Wrongful Conviction Law, Brandon L. Garrett

Faculty Scholarship

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth …


Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller Jan 2005

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …


The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale Jan 2005

The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale

Faculty Scholarship

No abstract provided.


Alaska Office Of Victims’ Rights: A Model For America, Stephen E. Branchflower Dec 2004

Alaska Office Of Victims’ Rights: A Model For America, Stephen E. Branchflower

Alaska Law Review

No abstract provided.


Diamond In The Rough: Mining Article 36(1)(B) Of The Vienna Convention On Consular Relations For An Individual Right To Due Process, Brittany P. Whitesell Nov 2004

Diamond In The Rough: Mining Article 36(1)(B) Of The Vienna Convention On Consular Relations For An Individual Right To Due Process, Brittany P. Whitesell

Duke Law Journal

No abstract provided.


Taking The Punishment Out Of The Process: From Substantive Criminal Justice Through Procedural Justice To Restorative Justice, Brenda Sims Blackwell, Clark D. Cunningham Oct 2004

Taking The Punishment Out Of The Process: From Substantive Criminal Justice Through Procedural Justice To Restorative Justice, Brenda Sims Blackwell, Clark D. Cunningham

Law and Contemporary Problems

If the punishment is taken out of the process, and the processes of criminal justice become effective at restoration--and if rigorous empirical research might show that a restorative process costs less money and produces greater public safety--that would be a result everyone would embrace.


Foreword, Christopher Ryan Hart Oct 2004

Foreword, Christopher Ryan Hart

Law and Contemporary Problems

No abstract provided.


Discretion And The Criminalization Of Environmental Law, Charles J. Babbitt, Dennis C. Cory, Beth L. Kruchek Oct 2004

Discretion And The Criminalization Of Environmental Law, Charles J. Babbitt, Dennis C. Cory, Beth L. Kruchek

Duke Environmental Law & Policy Forum

No abstract provided.