Digital Commons Network^™

Liberty, Equality, And Privacy: Choosing A Legal Foundation For Gay Rights, Richard A. Epstein

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No abstract provided.

Beyond Judicial Activism And Restraint, Richard A. Epstein

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No abstract provided.

Domestic Regulation, Sovereignty, And Scientific Evidence Requirements: A Pessimistic View, Alan O. Sykes

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No abstract provided.

Community Prosecutors, Anthony V. Alfieri

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No abstract provided.

Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld

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The article advocates for the establishment of "innocence commissions" to investigate and address wrongful convictions in the U.S. criminal justice system. Drawing parallels to the National Transportation Safety Board (NTSB), which investigates transportation accidents, the authors propose that these commissions would identify systemic defects leading to wrongful convictions and recommend reforms to prevent future miscarriages of justice. They emphasize the need for independence, subpoena power, and public accountability to ensure the commissions' effectiveness.

The Writings Of John Barker Waite And Thomas Davies On The Search And Seizure Exclusionary Rule, Yale Kamisar

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After browsing through many volumes of the Michigan Law Review, searching for the article I would discuss on the occasion of the law review's 100th anniversary, I wound up with two "finalists": a 1955 article by Professor John Barker Waite on the law of arrest search and seizure (on further reflection, four Michigan Law Review commentaries on the general subject written by Waite between 1933 and 1955)' and a monumental 200-page article (surely one of the longest articles ever to appear in the Michigan Law Review) by Thomas Davies on the "original Fourth Amendment. 2

Taxes Vs. Fees: A Curious Confusion, Hugh D. Spitzer

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Provides an analytical framework for categorizing varoius types of taxes and user charges and distinguishing between them, applying both economic and legal concepts.

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

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My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law, Pace University School of Law.]

Beyond Exit And Voice: User Participation In The Production Of Local Public Goods, Lee Anne Fennell

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No abstract provided.

Miranda, The Constitution, And Congress, David A. Strauss

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No abstract provided.

Symposium: Legal Reasoning And Artificial Intelligence: How Computers Think Like Lawyers, Cass R. Sunstein, Kevin Ashley, Karl Branting, Howard Margolis

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No abstract provided.

The Back-Door To Prison: Waiver Reform, "Blended Sentencing," And The Law Of Unintended Consequences, Marcy Rasmussen Podkopacz, Barry C. Feld

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The Minnesota innovation, "Extended Jurisdiction Juvenile Prosecution (EJJ)," allowed judges simultaneously to impose a delinquency disposition and an adult criminal sentence, the execution of which the judge stayed pending successful completion of the delinquency sentence. Podkapacz and Feld analyze the implementation of Minnesota's new EJJ blended sentencing law in Hennepin County, the largest metropolitan county in the state.

From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar

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Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.

$10 And A Denim Jacket--A Model Statute For Compensating The Wrongly Convicted, Alberto B. Lopez

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No abstract provided.

Expropriatory Intent: Defining The Proper Boundaries Of Substantive Due Process And The Takings Clause, Ronald J. Krotoszynski Jr.

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Expropriatory Intent Defining the Proper Boundaries of Substantive Due Process and the Takings Clause examines and critiques the contemporary Supreme Courts expansive construction of the Takings Clause Although the Supreme Court generally has decried the use of substantive due process to invalidate economic and social legislation many of the recent regulatory takings cases deploy the Takings Clause to second guess the legitimacy or fundamental fairness of such enactments The article argues that when a plaintiff alleges that a federal or state law is fundamentally unjust or arbitrary the federal courts should analyze the merits of the claim under the rubric …

Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker

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Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5

Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar

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Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising. As Professor Grano once …

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo

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Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of …

Cooley Innocence Project Kick-Off, Barry Scheck

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The Innocence Project, through the use of DNA testing, has successfully exonerated numerous wrongfully convicted individuals, exposing systemic flaws in the criminal justice system. This has highlighted the need for legal reforms to address issues such as eyewitness misidentification, false confessions, and fraudulent forensic science, ultimately aiming to prevent future wrongful convictions.

Constitutional Migration And The Bounds Of Comparative Analysis, Michel Rosenfeld

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The article explores the complexities and challenges of comparative constitutional analysis, highlighting how constitutional ideas and norms migrate across nations. It emphasizes that while such analysis is necessary and can provide valuable insights, it must be approached with caution, considering the unique cultural, historical, and political contexts of each country. The author argues that foreign constitutional materials can influence domestic law both directly and indirectly, but their application must account for contextual differences to avoid misinterpretation or misuse.

Transit Of Straits And Archipelagic Waters By Military Aircraft, Bernard H. Oxman

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The UN Convention on the Law of the Sea balances the interests of states in ways that are more refined than the classic summa divisio between the free high seas and territorial waters. The result for aviation is the preservation of freedom of overflight for civil and military aircraft seaward of the territorial sea in the exclusive economic zone as on the high seas beyond, and the right of such aircraft to transit archipelagic waters as well as straits comprised of territorial seas and internal waters. A proper understanding of the scope of these rights and their relationship to the …

Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar

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No serious student of police interrogation and confessions can write on the subject without building on Professor Joseph D. Grano's work or explaining why he or she disagrees with him (and doing so with considerable care). Nor is that all.

The Assault That Failed: The Progressive Critique Of Laissez Faire (Reviewing Barbara H. Fried, The Progressive Assault On Laissez Faire : Robert Hale And The First Law And Economics Movement (1998)), Richard A. Epstein

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No abstract provided.

Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks

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The author reviews the justifications for applying the law of vicarious liability in the franchising context and concludes that its application is often inefficient and arbitrary. He argues that the employee-independent contractor dichotomy used by courts to determine franchisor liability is not well-suited to franchising, where the relationship encompasses both concepts. He proposes that vicarious liability not be applied in the franchising context. Instead, the courts by case law or state legislatures by statute should impose a guarantor status on franchisors that would expose them to liability for the torts of the franchisees only if the franchisee was unavailable to …

American Prisons At The Beginning Of The Twenty-First Century, Michael Tonry, Joan Petersilia

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No abstract provided.

Sentencing Guidelines In Minnesota, Other States, And The Federal Courts: A Twenty-Year Retrospective, Richard Frase

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No abstract provided.

The Transformation Of The Juvenile Court--Part Ii: Social Structure, Race, And The "Crack Down" On Youth Crime, Barry C. Feld

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Part I briefly analyzes the social history of the juvenile court and argues that the progressive reformers who created the juvenile court designed it to discriminate against "other peoples' children," a feature that carries over into contemporary juvenile justice administration. Part II analyzes the "constitutional domestication" of the juvenile court. It places the U.S. Supreme Court's juvenile court "due process" decisions in a broader social structural context and argues that the Court emphasized procedural safeguards as part of its broader agenda to protect the civil rights and liberty interests of minorities. Part III analyzes the impact of the juvenile court's …

Rethinking Unthinkable Punishment Policies In America, Michael Tonry

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No abstract provided.

A Right Of Access To Court Under The Petition Clause Of The First Amendment: Defining The Right, Carol Rice Andrews

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No abstract provided.

Intermediate Sanctions In Sentencing Guidelines, Michael Tonry

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No abstract provided.