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The Case For Jury Sentencing, Morris B. Hoffman Mar 2003

The Case For Jury Sentencing, Morris B. Hoffman

Duke Law Journal

There are powerful historical, constitutional, empirical, and policy justifications for a return to the practice of having juries, not judges, impose sentences in criminal cases. The fact that Americans inherited from the English a mild preference for judge sentencing was more a historical accident than a case of thoughtful policy. Jury sentencing became quite widespread in the colonial and postcolonial eras as a reflection of deep-seated mistrust of the judiciary. The gradual drift away from jury sentencing was driven not by a new-found faith in the judiciary, but rather by the now discredited paradigm of rehabilitationism. Now that that paradigm …


Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones Mar 2003

Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones

Duke Law Journal

No abstract provided.


Remarks Of The Chief Justice: My Life In The Law Series, William H. Rehnquist Feb 2003

Remarks Of The Chief Justice: My Life In The Law Series, William H. Rehnquist

Duke Law Journal

No abstract provided.


The Case For National Dna Identification Cards, Ben Quarmby Jan 2003

The Case For National Dna Identification Cards, Ben Quarmby

Duke Law & Technology Review

Foes of the United States have demonstrated their ability to strike at the heart of this country. Fear of renewed attacks and a desire for greater national security have now prompted many to call for improvements in the national personal identification system. In particular, the possibility of a national identification card containing the carrier's DNA information is being seriously considered. However, this raises difficult questions. Would such a card system, and the extraction of individuals' DNA it entails, violate the 4th Amendment of the Constitution? This article will show that such a card system could in fact be found to …


Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale Jan 2003

Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale

Faculty Scholarship

No abstract provided.


The Importance Of Recognizing The Underlying Assumptions Of Legal And Moral Arguments: Of Law And Rawls, George C. Christie Jan 2003

The Importance Of Recognizing The Underlying Assumptions Of Legal And Moral Arguments: Of Law And Rawls, George C. Christie

Faculty Scholarship

No abstract provided.


The Patriot Act’S Impact On The Government’S Ability To Conduct Electronic Surveillance Of Ongoing Domestic Communications, Nathan C. Henderson Oct 2002

The Patriot Act’S Impact On The Government’S Ability To Conduct Electronic Surveillance Of Ongoing Domestic Communications, Nathan C. Henderson

Duke Law Journal

No abstract provided.


A Feminist Fourth Amendment?: Consent, Care, Privacy, And Social Meaning In Ferguson V. City Of Charleston, Andrew E. Taslitz Jul 2002

A Feminist Fourth Amendment?: Consent, Care, Privacy, And Social Meaning In Ferguson V. City Of Charleston, Andrew E. Taslitz

Duke Journal of Gender Law & Policy

No abstract provided.


Therapeutic Justice In Alaska’S Courts, Teresa W. Carns, Michael G. Hotchkin, Elaine M. Andrews Jun 2002

Therapeutic Justice In Alaska’S Courts, Teresa W. Carns, Michael G. Hotchkin, Elaine M. Andrews

Alaska Law Review

No abstract provided.


Foreword, James E. Coleman Jr., Barry Sullivan Apr 2002

Foreword, James E. Coleman Jr., Barry Sullivan

Law and Contemporary Problems

No abstract provided.


“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel Apr 2002

“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel

Law and Contemporary Problems

Matthew Hale is a white supremacist who likes to attract media attention. He set himself up as the leader of a racist "church" called the World Church of the Creator and immediately went about attempting to put an articulate, polite face on the organization. Hale's application to become a licensed attorney in Illinois, his subsequent denial and the litigation that followed are discussed.


The Fourth Amendment In The Twenty-First Century: Technology, Privacy, And Human Emotions, Andrew E. Taslitz Apr 2002

The Fourth Amendment In The Twenty-First Century: Technology, Privacy, And Human Emotions, Andrew E. Taslitz

Law and Contemporary Problems

Police and local political officials in Tampa FL argued that the FaceIt system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, some staging protests against the FaceIt system. Privacy objects seem to be far more widely shared than this small protest might suggest.


The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan Apr 2002

The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan

Law and Contemporary Problems

Today, the influence of the US Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, the German Basic Law, the post-war French constitutions, and the European Convention on Human Rights. These documents have influenced recent developments in the emerging democracies of eastern and central Europe.


Miranda’S Final Frontier—The International Arena: A Critical Analysis Of United States V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey Apr 2002

Miranda’S Final Frontier—The International Arena: A Critical Analysis Of United States V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Duke Law Journal

In recent years, the FBI and other federal law enforcement agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and Internet fraud schemes to terrorism. Where this law enforcement activity includes custodial interrogation of non-American citizens abroad, must American law enforcement officials provide Miranda warnings to such suspects? In 2001 in United States v. Bin Laden, a federal district court held that the Fifth Amendment's privilege against self-incrimination applies to non-American citizens interrogated abroad, thus requiring Miranda warnings in this context. This Article criticizes the Bin Laden court's strict application of Miranda and suggests that Miranda should …


Terrorism On Trial: The President’S Constitutional Authority To Order The Prosecution Of Suspected Terrorists By Military Commission, Christopher M. Evans Apr 2002

Terrorism On Trial: The President’S Constitutional Authority To Order The Prosecution Of Suspected Terrorists By Military Commission, Christopher M. Evans

Duke Law Journal

No abstract provided.


Whither Securities Regulation? Some Behavioral Observations Regarding Proposals For Its Future, Robert Prentice Mar 2002

Whither Securities Regulation? Some Behavioral Observations Regarding Proposals For Its Future, Robert Prentice

Duke Law Journal

Respected commentators have floated several proposals for startling reforms of America's seventy-year-old securities regulation scheme. Many involve substantial deregulation with a view toward allowing issuers and investors to contract privately for desired levels of disclosure and fraud protection. The behavioral literature explored in this Article cautions that in a deregulated securities world it is exceedingly optimistic to expect issuers voluntarily to disclose optimal levels of information, securities intermediaries such as stock exchanges and stockbrokers to appropriately consider the interests of investors, or investors to be able to bargain efficiently for fraud protection.


The Unintended Consequences Of Enhancing Gun Penalties: Shooting Down The Commerce Clause And Arming Federal Prosecutors, Sara Sun Beale Mar 2002

The Unintended Consequences Of Enhancing Gun Penalties: Shooting Down The Commerce Clause And Arming Federal Prosecutors, Sara Sun Beale

Duke Law Journal

No abstract provided.


Keeping The “Civil” In Civil Litigation: The Need For A Punitive Damage-Actual Damage Link In Title Vii Cases , David C. Searle Mar 2002

Keeping The “Civil” In Civil Litigation: The Need For A Punitive Damage-Actual Damage Link In Title Vii Cases , David C. Searle

Duke Law Journal

No abstract provided.


Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur Feb 2002

Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur

Duke Law Journal

No abstract provided.


Hearsay Exceptions: Adjusting The Ratio Of Intuition To Psychological Science, John E. B. Myers, Ingrid Cordon, Simona Ghetti, Gail S. Goodman Jan 2002

Hearsay Exceptions: Adjusting The Ratio Of Intuition To Psychological Science, John E. B. Myers, Ingrid Cordon, Simona Ghetti, Gail S. Goodman

Law and Contemporary Problems

Myers explores hearsay exeptions by examining three exceptions: excited utterances, statements for purposes of diagnosis or treatment, and the residual hearsay exception. The focus is child declarants, and these exceptions play key roles in child abuse litigation.


Good Enough For Government Work: The Constitutional Duty To Preserve Forensic Interviews Of Child Victims, Lucy S. Mcgough Jan 2002

Good Enough For Government Work: The Constitutional Duty To Preserve Forensic Interviews Of Child Victims, Lucy S. Mcgough

Law and Contemporary Problems

McGough proceeds with the confidence on the premise that a forensic interview of a child by a member of the prosecutorial team offers many opportunities for compromising the reliability of the child's remembered account. A vast volume of research data now exists that documents the conclusion that the forensic interviewing of children is a very delicate, sophisticated, and high-risk enterprise.


The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman Jan 2002

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Law and Contemporary Problems

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child.


Overlegalizing Human Rights: International Relations Theory And The Commonwealth Caribbean Backlash Against Human Rights Regimes, Laurence R. Helfer Jan 2002

Overlegalizing Human Rights: International Relations Theory And The Commonwealth Caribbean Backlash Against Human Rights Regimes, Laurence R. Helfer

Faculty Scholarship

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treaty's substantive rules or its review procedures are too constraining of sovereignty, causing governments to engage in acts of non-compliance or even to denounce the treaty. The concept of legalization and its potential excesses, although unfamiliar to many legal scholars, has begun to be explored by international relations theorists analyzing the effects of legal rules in changing state behavior. This article bridges the gap between international legal scholarship and international relations theory by exploring a recent case study of overlegalization. It seeks to understand …


Retributive Justice: Its Social Context, Neil Vidmar Jan 2002

Retributive Justice: Its Social Context, Neil Vidmar

Faculty Scholarship

Until relatively recently, social psychologists have given less attention to retributive justice than to other forms of justice, such as distributive and procedural justice. Although interest in retributive justice is increasing, the fact remains that social psychological research on retribution has tended to ignore, or at least downplay, the insights of sociologists in deference to an approach that examines how individuals respond to deviant acts. Without rejecting psycholgical analyses, this chpater draws attention to the social context and social consequences of retributive justice. Group dynamics are at play in a wide array of settings in which people respond to rule …


A Feminist Look At The Death Penalty, Amy E. Pope Jan 2002

A Feminist Look At The Death Penalty, Amy E. Pope

Law and Contemporary Problems

Pope gives an exploration of the need for a feminist perspective on capital punishment. She then begins to determine which feminist methodology is most appropriate to an analysis of the death penalty.


Manufacturing Convictions: Why Defendants Are Entitled To The Data Underlying Forensic Dna Kits, Jennifer N. Mellon Dec 2001

Manufacturing Convictions: Why Defendants Are Entitled To The Data Underlying Forensic Dna Kits, Jennifer N. Mellon

Duke Law Journal

No abstract provided.


On A Collision Course: Pure Propensity Evidence And Due Process In Alaska, Drew D. Dropkin, James H. Mccomas Dec 2001

On A Collision Course: Pure Propensity Evidence And Due Process In Alaska, Drew D. Dropkin, James H. Mccomas

Alaska Law Review

No abstract provided.


National Constitutional Compatibility And The International Criminal Court, Helen Duffy Oct 2001

National Constitutional Compatibility And The International Criminal Court, Helen Duffy

Duke Journal of Comparative & International Law

No abstract provided.


The New Deal Constitution In Exile, William E. Forbath Oct 2001

The New Deal Constitution In Exile, William E. Forbath

Duke Law Journal

No abstract provided.


A Comity Of Errors: Why John V. Baker Is Only A Tentative First Step In The Right Direction, Carl H. Johnson Jun 2001

A Comity Of Errors: Why John V. Baker Is Only A Tentative First Step In The Right Direction, Carl H. Johnson

Alaska Law Review

No abstract provided.