Digital Commons Network^™

Missing White Woman Syndrome: An Empirical Analysis Of Race And Gender Disparities In Online News Coverage Of Missing Persons, Zach Sommers

Journal of Criminal Law and Criminology

At any given time, there are tens of thousands of Americans categorized as “missing” by law enforcement. However, only a fraction of those individuals receive news coverage, leading some commentators to hypothesize that missing persons with certain characteristics are more likely to garner media attention than others: namely, white women and girls. Empirical investigation into this theory is surprisingly sparse and also limited in multiple ways. This paper aims to fill those voids by empirically exploring whether that inequality, dubbed “Missing White Woman Syndrome,” truly exists. Based on a multi-method approach using Federal Bureau of Investigation data and data culled …

A Victim Of Abuse Should Still Have A Castle: The Applicability Of The Castle Doctrine To Instances Of Domestic Violence, Cristina G. Messerschmidt

Journal of Criminal Law and Criminology

In light of a nation-wide discussion about expanding self-defense laws, as well as an increased recognition of domestic violence, the phrases “stand your ground” and “retreat to the wall” have taken on entirely new meanings. In cases of domestic abuse, which happen largely inside the home, self-defense laws become more difficult to navigate when victims retaliate against their abusers. Generally, individuals using deadly force against their attackers cannot do so until they “retreat to the wall”—until they do everything possible to safely escape the attack and avoid taking a human life. It is then, and only then, that they are …

In Cyclobenzaprine, An Objective Failure To Reach A Long-Felt Need In Secondary Considerations Jurisprudence, C. Dylan Turner

Northwestern Journal of Technology and Intellectual Property

Over the tenure of the Court of Appeals for the Federal Circuit, secondary considerations have become increasingly important in the analysis of nonobviousness. However, a close examination of the analytical framework behind these factors tells a cautionary tale. Courts often interpret evidentiary details of disputable import to indicate multiple secondary factors. In particular, the courts’ handling of the secondary consideration of long-felt need has allowed courts to spin mountains from evidentiary molehills. Analysis of the opinions in In re Cyclobenzaprine will demonstrate this proclivity. This Note proposes a solution: a thorough analytical method for each factor, to ensure the independence, …

The Politics Of The Takings Clauses, Mila Versteeg

Northwestern University Law Review

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain …

Intersex Employment Discrimination: Title Vii And Anatomical Sex Nonconformity, Mark E. Berghausen

Northwestern University Law Review

No abstract provided.

Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe

Northwestern University Law Review

No abstract provided.

Beyond Principal-Agent Theories: Law And The Judicial Hierarchy, Pauline T. Kim

Northwestern University Law Review

No abstract provided.

Privileges Or Immunities, Philip Hamburger

Northwestern University Law Review

No abstract provided.

The "Kettleful Of Law" In Real Jury Deliberations: Successes, Failures, And Next Steps, Shari Seidman Diamond, Beth Murphy, Mary R. Rose

Northwestern University Law Review

No abstract provided.

Adversarial Economics In Antitrust Litigation: Losing Academic Consensus In The Battle Of The Experts, Rebecca Haw

Northwestern University Law Review

No abstract provided.

The Myth Of A Value-Free Injury Law: Constitutive Injury Law As A Cultural Battleground, Michael L. Rustad

Northwestern University Law Review

No abstract provided.

An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, Eric A. Posner, E. Glen Weyl

Northwestern University Law Review

The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd–Frank Act, Congress sought to address the problem of speculative investment, but it merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will …

The Chief Justice, The Appointment Of Inferior Officers, And The "Court Of Law" Requirement, James E. Pfander

Northwestern University Law Review

In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign. This Article questions the Chief’s role. The Constitution authorizes Congress to vest the appointment of inferior officers in the “courts of law” but not the Chief Justice. History teaches …

Why Abstention Is Not Illegitimate: An Essay On The Distinction Between "Legitimate" And "Illegitimate" Statutory Interpretation And Judicial Lawmaking, Richard H. Fallon Jr.

Northwestern University Law Review

No abstract provided.

What Is Wrong With Sex In Authority Relations? A Study In Law And Social Theory, Galia Schneebaum

Journal of Criminal Law and Criminology

Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws …

Putting The "Corporate" Back Into Corporate Personhood, Caroline Kaeb

Northwestern Journal of International Law & Business

The Supreme Court has been wrestling with the doctrinal premises of

corporate personhood on several occasions in recent years. The Court follows a

long history of jurisprudence that has been criticized as cryptic or nebulous at

best by many scholars. Especially since the recent economic crisis, the doctrine

of corporate personhood has had polarizing effects on the public debate about

the role of corporations in society. At a policy level, the debate revolves around

questions about the scope of regulatory reach of the state over business; at a sociological

level, the issue presents itself as an oxymoron, whether “corporations

have …

Framing A Narrative Of Discrimination Under The Eighth Amendment In The Context Of Transgender Prisoner Health Care, Sarah Halbach

Journal of Criminal Law and Criminology

This Comment looks closely at the reasoning behind two recent federal court opinions granting transgender prisoners access to hormone therapy and sex-reassignment surgery. Although both opinions were decided under the Eighth Amendment’s ban on cruel and unusual punishment, which does not expressly prohibit discrimination based on gender identity, a careful look at the courts’ reasoning suggests that they were influenced by the apparent discrimination against the transgender plaintiffs. This Comment argues that future transgender prisoners may be able to develop an antidiscrimination doctrine within the Eighth Amendment by framing their Eighth Amendment medical claims in terms of discrimination based on …

Trevino V. Thaler: Falling Short Of Meaningful Federal Habeas Corpus Reform, Cristina Law

Journal of Criminal Law and Criminology

Prisoners face many barriers when petitioning for federal habeas corpus relief, especially when asserting ineffective assistance of trial counsel claims. The Supreme Court’s decision in Trevino v. Thaler attempted to lower these barriers by carving out a narrow exception to the procedural default rule. Although a step in the right direction, this narrow exception fell short of meaningful habeas corpus reform. This Comment argues that although the Supreme Court’s decision in Trevino appears to guarantee habeas corpus petitioners the ability to raise ineffective assistance of trial counsel claims in federal court, it is unlikely to provide prisoners meaningful opportunities to …

Investigating The Programmatic Attack: A National Survey Of Veterans Treatment Courts, Julie Marie Baldwin

Journal of Criminal Law and Criminology

Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of VTCs (N = 114) was created. …

Examining The Sources Of Correctional Officer Legitimacy, Benjamin Steiner, John Wooldredge

Journal of Criminal Law and Criminology

Correctional officer legitimacy has been linked to prison safety and order, and it may also be relevant for inmate well-being and facilitating behavioral change. Yet few studies have examined the sources of correctional officer legitimacy. Findings from analyses of survey data collected from over 5,500 inmates housed throughout forty-six facilities in Ohio and Kentucky revealed that inmates’ perceptions of the treatment they received during their most recent encounters with correctional officers (procedural justice) impacted the strength of their beliefs regarding the legitimacy of those officers. The analyses also revealed that background factors such as inmates’ age and race were relevant …

Sentencing And Interbranch Dialogue, Eric S. Fish

Journal of Criminal Law and Criminology

American legislatures generally delegate primary control over sentencing policy to one of two actors: trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values: individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on interbranch dialogue to transcend this …

Maternal And Paternal Imprisonment And Children's Social Exclusion In Young Adulthood, Holly Foster, John Hagan

Journal of Criminal Law and Criminology

The United States has entered its fourth decade of high imprisonment levels. It is now possible to assess the impact of parental imprisonment on children who have completed the transition to adulthood. We elaborate the role of parental incarceration from a life course perspective on intergenerational social exclusion in young adulthood. The National Longitudinal Study of Adolescent Health [Add Health] representatively sampled the historically unique national cohort born in the 1980s, during the onset of mass incarceration. Four waves of the Add Health survey provide a valuable moving window on incarcerated parents and the transitions of their children from adolescence, …

To Be Judged By Twelve Or Carried By Six? Quasi-Involuntariness And The Criminal Prosecution Of Service Members For The Use Of Force In Combat - A Grunt's Perspective, Lupe Laguna

Journal of Criminal Law and Criminology

Post-9/11 conflicts have altered the way that the United States of America and her allies fight wars. Over the last ten years military commanders have embraced counterinsurgency doctrine as the path to victory in the War on Terror. As they have done so, commanders have been faced with the difficult task of balancing the need to protect local civilian populations with the need to proactively target insurgent fighters. To accomplish this mission, the military has adopted rules of engagement that allow a service member to engage a target when he or she perceives that the target exhibits “hostile intent.” The …

The Psychology Of Workplace Deviant & Criminal Behavior, William Brice, Deborah E. Rupp

Journal of Criminal Law and Criminology

The 2013 book Deviant and Criminal Behavior in the Workplace addresses the psychological constructs, situations, and environments underlying active counterproductive workplace behaviors. Building on a diverse range of psychological findings, this book highlights that the field of criminology needs to expand outside of the realm of violence and instead look at how deviant workplace behaviors can tie into—and motivate—other types of crime.

Lawful Or Fair? How Cops And Laypeople Perceive Good Policing, Tracey L. Meares, Tom R. Tyler, Jacob Gardener

Journal of Criminal Law and Criminology

Legal authorities and the public live in two separate worlds. One world is suffused with law, and the other world is suffused with people’s lived experiences that support their evaluations of fairness. When legal authorities consider whether police policies and practices are desirable, a framework regarding the lawfulness of the relevant policies and practices dominates the conversation. Police departments, their policies, and police officers’ actions are viewed as right or wrong with reference to constitutional standards, as interpreted by prosecutors, judges, and other legal actors. In contrast, we argue that the public is generally insensitive to the question of whether …

Estimating The Prevalence Of Entrapment In Post-9/11 Terrorism Cases, Jesse J. Norris, Hanna Grol-Prokopczyk

Journal of Criminal Law and Criminology

How many of the terrorism convictions since September 11, 2001 have been the product of entrapment? Some scholars and journalists have suggested that the number is quite high. One report went so far as to claim that only 1% of terrorism prosecutions involve “real” terrorism. The government’s defenders, at the opposite extreme, come close to saying that entrapment in a terrorism case is a contradiction in terms.

Little empirical basis exists for evaluating these competing claims. Existing literature on terrorism and entrapment is typically based on detailed discussions of a few egregious cases, rather than systematic analysis of the phenomenon. …

Symposium On The Center On Wrongful Convictions: Foreward, Karen L. Daniel

Journal of Criminal Law and Criminology

No abstract provided.

An Ideological Odyssey: Evolution Of A Reformer, Rob Warden

Journal of Criminal Law and Criminology

No abstract provided.

Remembering Disputed Sexual Encounters: A New Frontier For Witness Memory Research, Deborah Davis, Elizabeth F. Loftus

Journal of Criminal Law and Criminology

This paper reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants. We review factors leading to initial misinterpretations of sexual consent including the indirect nature of sexual consent communications, misleading cultural sexual scripts, misinterpretation of passivity, and others. In this context, we consider the way in which alcohol can both contribute to initial misunderstanding and promote specific distortions in memory over time. Finally, we discuss additional influences on memory, including motivations related to self-esteem, self-concept maintenance, or litigation, and the effects of social influence from sources such as friends, forensic interviewers or therapists.

The Unindicted Co-Ejaculator And Necrophilia: Addressing Prosecutors' Logic-Defying Responses To Exculpatory Dna Results, Jacqueline Mcmurtrie

Journal of Criminal Law and Criminology

This article addresses a prosecutor’s development of new and bizarre theories, particularly in cases involving confession evidence, to explain away exculpatory DNA results. In Juan Rivera’s case, the prosecutor’s theory for why sperm found inside the 11-year-old victim on the day she was murdered did not belong to Rivera was that she had sex with someone before Rivera came along and raped (but did not ejaculate) and murdered her. The unnamed-lover theory is used so often by prosecutors that it has a moniker: “the unindicted co-ejaculator.” In the case of the Dixmoor Five, teenagers convicted of the rape and murder …