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'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar

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It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …

How To Argue About Health Care, Don Herzog

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Despite the aggressive title of this article, my goals are modest. I begin by explaining briefly what should at any rate be obvious: that health care policies inescapably raise moral and political difficulties, difficulties that no technical fix could resolve. I move on to puzzle over the connections between some of the more abstract issues of moral and political theory and medical policy: here I urge that we develop a more sustained taste for exploring the moral conflicts embedded in our current practices. Finally, I suggest a strategy for making nitty-gritty facts-from the concrete world of third-party payment, expensive technology, …

Preventive Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

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No abstract provided.

From Billy Budd To Buchenwald (Reviewing Weisberg, Richard H., The Failure Of The Word: The Protagonist As Lawyer In Modern Fiction (1984)), Richard A. Posner

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No abstract provided.

The Juvenile Court Meets The Principle Of The Offense: Legislative Changes In Juvenile Waiver Statutes, Barry C. Feld

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At its inception the juvenile court was characterized by procedural informality and individualized, offender-oriented dispositions. Subsequent to the U.S. Supreme Court's 'Gault' decision, which mandated procedural safeguards in the adjudication of delinquency, juvenile court procedures became more formal in the interest of protecting the rights of juveniles, but individualized, offender-oriented dispositions were preserved. The inability of proponents of juvenile rehabilitation to demonstrate the effectiveness of parens patriae intervention, however, has led an increasing number of States to incorporate 'just deserts' sentencing principles in their juvenile justice systems. This emphasis is evidenced in the waiver of juvenile offenders for criminal prosecution …

Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross

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It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

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Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

Arguing About Rights, Charles M. Yablon

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Francis A. Allen: 'Confront[Ing] The Most Explosive Problems' And 'Plumbing All Issues To Their Full Depth Without Fear Or Prejudice', Yale Kamisar

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Frank Allen began his distinguished teaching career more than thirty-five years ago - at a time when, at more law schools than we like to remember, "the basic criminal law course was routinely assigned to the youngest and most vulnerable member of the faculty or to that colleague suspected of mild brain damage and hence incompetent to deal with courses that really matter."' That those of us who taught criminal law years later were warmly received by our colleagues is in no small measure a tribute to the quality of mind and character and intellectual energy of people like Allen, …

Judicially Ordered Social Reform: Neofederalism And Neonationalism And The Debate Over Political Structure, David Rudenstine

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The article examines the ideological divide within the U.S. Supreme Court between neofederalism and neonationalism, two legal theories that shape the Court's approach to federalism and individual rights. Neofederalism emphasizes state autonomy and limits federal intervention in state institutions, while neonationalism advocates for a stronger federal role in protecting individual rights, even if it requires overriding state decisions. This divide significantly influences the Court's rulings on issues such as prison conditions and institutional reform, reflecting broader debates about the role of federalism in social reform and judicial decision-making.

Failed Pragmatism: Reflections On The Burger Court Commentaries, Albert W. Alschuler

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Personal Failure, Institutional Failure, And The Sixth Amendment, Albert W. Alschuler

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Free Speech In An Economic Perspective, Richard A. Posner

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Criminal Procedure In A Conservative Age: A Time To Rediscover The Critical Nonconstitutional Issues, Richard Frase

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Criminal procedure is changing fast these days, but teachers of criminal procedure are not. Most of us have probably given considerable thought to the philosophical and doctrinal significance of the Supreme Court's increasingly conservative approach to constitutional issues, but have we thought about the broader pedagogic and professional implications of this major doctrinal shift? For me. the current conservative trend raises fundamental questions about the kinds of issues we should be addressing in our teaching, research, and public service activities. In particular. we need to start asking ourselves whether our traditional heavy emphasis on constitutional issues (which has been going …

Prosecutorial Discretion In Japan: A Response, Daniel H. Foote

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Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system.

Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards …

Compelling Testimony In Alaska: The Coming Rejection Of Use And Derivative Use Immunity, Jeff M. Feldman

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Until 1972, when the Supreme Court upheld a federal use andderivative use immunity statute in Kastigar v. United States, virtually every court that considered the issue of the compulsion of testimony favored transactional immunity. It appears that most courts interpreted the Supreme Court's 1892 decision in Counselman v. Hitchcock as finding only transactional immunity constitutional. Since Kastigar, the Alaska Supreme Court has had several opportunities totake sides in the debate over the grant of immunity constitutionally required to compel testimony. On each such occasion, the court has expressed a preference for transactional immunity, but has carefullyavoided resolving the …

Mediation With A Mugger: The Shortage Of Adjudicative Services And The Need For A Two-Tier Trial System In Civil Cases, Albert W. Alschuler

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The German Advantage In Civil Procedure, John H. Langbein

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An Economic Theory Of The Criminal Law, Richard A. Posner

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Defining The Limits Of Crime Control And Due Process, Richard Frase

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In his latest book, Hans Zeisel argues that "law enforcement, important and essential as it is, cannot by itself significantly reduce crime" (p. 15). Thus, he concludes, we should redirect our efforts toward general prevention, starting with improvements in ghetto schools. Zeisel's thesis is supported by data from his study of the disposition of felony arrests in New York City 1 and is supplemented by his assessment of the results of recent criminal justice research in other jurisdictions. Zeisel, a pioneer in the application of social science research methods to issues of law and public policy, 2 presents a wealth …

Custody Investigation In Divorce Cases: The New York Law Revision Commission Proposal In Perspective, Robert Levy

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The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine

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There's no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn't the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law.

Rotten Social Background: Should The Criminal Law Recognize A Defense Of Severe Environmental Deprivation, Richard Delgado

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Affirmative Action And The Legislative History Of The Fourteenth Amendment, Eric Schnapper

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This article contends that the legislative history of the fourteenth amendment is not only relevant to but dispositive of the legal dispute over the constitutional standards applicable to race-conscious affirmative action plans. From the closing days of the Civil War until the end of civilian Reconstruction some five years later, Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks. These programs were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. The race-conscious Reconstruction programs were …

The Office Of Chief Judge Of A Federal Court Of Appeals, Wilfred Feinberg

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Article by Wilfred Feinberg, Chief Judge of the United States Court of Appeals for the Second Circuit (1980–1988), regarding the history and duties of a chief judge of a court of appeals. Document includes handwritten notes and was originally published in the Fordham Law Review.

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

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Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

Human Rights, Stability, And Development In Africa: Some Observations On Concept And Reality, Minasse Haile

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The article examines the challenges of implementing international human rights standards in sub-Saharan Africa, highlighting the tension between human rights and economic development. It argues that while human rights are essential, their realization is impeded by factors such as authoritarian governance, economic disparities, and the legacy of colonialism. The author advocates for a balanced approach that considers these challenges while promoting human rights, emphasizing the need to support pragmatic governance to gradually improve human rights conditions.

Constitution In The Supreme Court: Civil War And Reconstruction, 1865-1873, David P. Currie

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Bright Line Fever And The Fourth Amendment, Albert W. Alschuler

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The Constitution In The Supreme Court: Civil War And Reconstruction, 1863-1873, David P. Currie

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No abstract provided.