Digital Commons Network^™

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz

Faculty Publications

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on …

The Conscience And Culture Of Prosecution: An Introduction, Anna Offit

Faculty Publications

Introduction to a symposium issue: "an interdisciplinary conversation between a filmmaker, former prosecutors, law professors, defense attorneys, and graduate students. Several questions prompted this gathering: First, do prosecutors have a distinctive legal 'culture'? What are the shared assumptions that define it? And how do those assumptions synchronize or conflict with the behaviors we deem ethical?"

Legitimizing International Criminal Justice: The Importance Of Process Control, Nancy Amoury Combs

Faculty Publications

No abstract provided.

The "Padilla Advisory" And Its Implications Beyond The Immigration Context, Hanh H. Le

William & Mary Bill of Rights Journal

No abstract provided.

Culture Matters: Cultural Differences In The Reporting Of Employment Discrimination Claims, Andrew Tae-Hyun Kim

William & Mary Bill of Rights Journal

Why don’t reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title VII’s administrative scheme—which was created precisely to remedy and deter such conduct—but also incurs a heavy litigative cost in employer liability suits. This Article claims that for certain minority groups, namely Asian Americans, certain cultural differences significantly heighten those structural barriers and consequently leave them underprotected in the legal system. The Article locates …

Split Definitive, Lawrence Baum, Neal Devins

Popular Media

For the first time in a century, the Supreme Court is divided solely by political party.

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …

Tragic Rights: The Rights Critique In The Age Of Obama, Robin L. West

William & Mary Law Review

No abstract provided.

Extending Hope Into "The Hole": Applying Graham V. Florida To Supermax Prisons, Joseph B. Allen

William & Mary Bill of Rights Journal

No abstract provided.

Beginning To End Racial Profiling: Definitive Solutions To An Elusive Problem, Kami Chavis Simmons

Faculty Publications

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim's claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities'] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning

William & Mary Law Review

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’srights, even when context and demonstrated capacity would supportaffirmation of those rights. Context involves both the physical settingin which Fourth Amendment protections are sought and the nature of the privacy interest at …

The Docket (September 16, 2011), William & Mary Law School

The Docket

No abstract provided.

Bargaining Inside The Black Box, Allison Orr Larsen

Faculty Publications

When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of …

Widening Batson's Net To Ensnare More Than The Unapologetically Bigoted Or Painfully Unimaginative Attorney, Jeffrey Bellin, Junichi P. Semitsu

Faculty Publications

In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge—the unbounded collection of justifications that courts, including the Supreme Court, accept as “race neutral.”

To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000–2009) that …

The Docket (April 22, 2011), William & Mary Law School

The Docket

No abstract provided.

Gendering Consitutional Design In Post-Conflict Societies, Dina Francesca Haynes, Fionnuala Ni Aolain, Naomi Cahn

William & Mary Journal of Race, Gender, and Social Justice

This article commences with a discussion of transitional constitutional
design and the ways in which the branches of government
relate to one another, focusing on the consequences of these structures
for women. We are convinced that an analysis of the rights-bearing
portions of a constitution alone is insufficient to fully capture the way
in which power is structured and experienced. Consistent with other
scholars, we start from the view that “constitutions are derived from
a social contract between the constituents who will be governed and
the political actors who will govern; they explain how the society
and government will operate …

One Step Forward, But Two Steps Back: Why Gacaca In Rwanda Is Jeopardizing The Good Effect Of Akayesu On Women's Rights, Brittany A. Olwine

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

12 Unnecessary Men: The Case For Eliminating Jury Trials In Drunk Driving Cases, Adam M. Gershowitz

Faculty Publications

Over the last few decades, states have imposed tougher punishments on drunk drivers. This Article argues that increasing punishments is counterproductive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months’ incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have found that the certainty of …

Special Challenges To 21st Century Lawyers: The Use And Misuse Of Technology, Fredric I. Lederer, Richard K. Herrmann, Jan Michelsen, Andrew Mertens

Faculty Publications

No abstract provided.

The Defense Of Marriage Act And Uncategorical Federalism, David B. Cruz

William & Mary Bill of Rights Journal

This Essay addresses federalism objections to section 3 of the Defense of Marriage Act (DOMA). Ordinarily, the federal government accepts states’ determinations of what couples are validly married. Section 3 of DOMA, however, fashions a broad exception for same-sex couples, who are definitionally deemed not to be in “marriages.” In addition to equal protection and full faith and credit challenges to DOMA, litigants have made constitutional federalism arguments. In Massachusetts v. United
States Department of Health and Human Services, the federal trial court accepted one such argument, though in a form that might be read to categorically deny the federal …

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd

William & Mary Bill of Rights Journal

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are …

The United Nations And Women - A Critique, Elizabeth F. Defeis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Death Of The Fourteenth Amendment: Castle Rock And Its Progeny, G. Kristian Miccio

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

Admissions Brochure 2011-2012, William & Mary Law School

Admissions Brochures

No abstract provided.

Evidence (Routledge Handbook Of International Criminal Law), Nancy Amoury Combs

Faculty Publications

No abstract provided.

Cooperative Federalism And Police Reform: Using Congressional Spending Power To Promote Police Accountability, Kami Chavis Simmons

Faculty Publications

Police misconduct and corruption persist in our nation's local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the "DOJ") the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government's current strategy represents a promising model for reform, the DOJ's efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play …

"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Ethical Guidance For A Grander Jury, Anna Offit

Faculty Publications

Section I of this Note explores the extent to which the American Bar Association (ABA) Practice Guide, and similar major ethical conventions and advisory opinions, present competing interpretations of the grand jury's role in the criminal justice system. The lack of prosecutorial disclosure of exculpatory evidence, grand jury secrecy, and the abundance of plea negotiations demonstrate how historicized visions of the grand jury are appropriated to serve distinct conceptions of the institution's proper role. Section II offers a historical narrative of the grand jury that places grand jurors' "local knowledge" and experience at the heart of an inherently interpretive and …

Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl

Faculty Publications

Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, …