Digital Commons Network^™

"The More Things Change . . .": New Moves For Legitimizing Racial Discrimination In A "Post-Race" World, Mario L. Barnes

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No abstract provided.

Privacy, Public Disclosure, Police Body Cameras: Policy Splits, Mary D. Fan

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When you call the police for help—or someone calls the police on you—do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives—after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure.

This Article sheds light on the balances …

Why Law Matters, Kellye Y. Testy

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Presidential address given at the Association of American Law Schools annual meeting, Jan. 9, 2016.

Federal Sentencing Guidelines & United States V. Booker: Social Context And Sentencing Disparity, Jeffrey Nowacki

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The United States v. Booker (2005) decision rendered Federal Sentencing Guidelines advisory rather than mandatory. In the context of this decision, this study examines both the direct influence of aggregate-level political, community and administrative variables on sentencing outcomes, and the way that such characteristics might contextualize individual-level predictors. Using multi-level regression techniques, this study examines the role of aggregate level variables on sentence length decisions across four distinct time periods. Moreover, this article also examines whether aggregate-level variables condition the effects of race/ethnicity on sentencing outcomes. While the direct effects of aggregate-level variables on sentencing outcomes are generally limited to …

The Difficulties Of Democratic Mercy, Aziz Huq

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No abstract provided.

The Use And Misuse Of Patent Licenses, Jonathan Masur

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No abstract provided.

Examining The Use Of Community Service Orders As Alternatives To Short Prison Sentences In Ireland, Kate O'Hara, Mary Rogan

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Ireland’s highly discretionary sentencing system provides a rare opportunity to study the behaviour of judges when relatively free of externally imposed constraints. While this is so, few studies have investigated sentencing trends.

Judicial Independence And The Rationing Of Constitutional Remedies, Aziz Huq

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No abstract provided.

Resentencing In The Shadow Of Johnson V. United States, Leah Litman

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On June 26, 2015, the Supreme Court handed down a decision many years in the making—Johnson v. United States. Johnson held that the ‘‘residual clause’’ of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Although Johnson may have been overshadowed in the final days of a monumental Supreme Court term, the decision is a significant one that will have important consequences for the criminal justice system. ACCA’s residual clause imposed a severe 15-year mandatory minimum term of imprisonment, and many federal prisoners qualify for ACCA’s mandatory minimum. Johnson did away with ACCA’s residual clause such that defendants will no …

A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar

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I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.

Religious Objections To The Death Penalty After Hobby Lobby, Danieli Evans

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In Glossip v. Gross, the Supreme Court held that in order to prevail on the claim that a method of execution is cruel and unusual punishment, petitioners must prove that there is an available alternative that entails a lesser risk of pain. In this case, the state was using a method that is allegedly more painful than drugs used in the past because manufacturers of the preferable drugs objected to selling them for the purpose of executions. These manufacturers are not alone in their desire to boycott the death penalty. Many religious groups have declared opposition to the death …

Peer Victimization And Drd4 Genotype Influence Problem Behaviors In Young Children, Lisabeth Fisher Dilalla, Kyle Bersted, Sufna Gheyara John

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Decades of research supports the presence of significant genetic influences on children’s internalizing (emotional), externalizing (acting out), and social difficulties, including victimization. Additionally, being victimized has been shown to relate to further behavioral problems. The current study assessed the nature of the gene-environment relationships between the DRD4 gene, peer victimization, and externalizing and internalizing difficulties in 6- to 10-year- old children. 174 children (56% girls; 88.6% Caucasian, 3.4% African American, 8% mixed race or Mayan) and their parents were administered victimization and problem behavior questionnaires, and DRD4 was genotyped for the children. An interaction between genes (DRD4) and environment (victimization) …

Genetic Influences On Peer And Family Relationships Across Adolescent Development: Introduction To The Special Issue, Lisabeth Fisher Dilalla, Paula Y. Mullineaux

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Nearly all aspects of human development are influenced by genetic and environmental factors, which conjointly shape development through several gene-environment interplay mechanisms. More recently, researchers have begun to examine the influence of genetic factors on peer and family relationships across the pre-adolescent and adolescent time periods. This article introduces the special issue by providing a critical overview of behavior genetic methodology and existing research demonstrating gene-environment processes operating on the link between peer and family relationships and adolescent adjustment. The overview is followed by a summary of new research studies, which use genetically informed samples to examine how peer and …

The American Jury System: A Synthetic Overview, Richard O. Lempert

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This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Using Screening And Assessment Evidence Of Trauma In Child Welfare Cases, Frank E. Vandervort

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If you are a child welfare lawyer representing children, parents, or the child welfare agency, understanding how traumatic experiences may impact your clients will help you frame your advocacy. Understanding children and their parents’ histories of exposure to potentially traumatic life events and how those events have impacted the client’s functioning—in school, in interactions with other people, and as parents—can be critical to framing your approach in the case. Evidence of the client’s trauma history and any compromised functioning that may have resulted from that trauma is critical to integrate into your advocacy.

Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman

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In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years …

The Overlooked Benefits Of The Blackstone Principle, Jonathan Masur, John Bronsteen

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No abstract provided.

State Regulation And The Necessary And Proper Clause, William Baude

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No abstract provided.

Second-Order Regulation Of Law Enforcement, John Rappaport

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No abstract provided.

Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott

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Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these …

The Law And Politics Of The Charles Taylor Case, Charles Chernor Jalloh

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This article discusses a rare successful prosecution of a head of state by a modern international criminal court. The case involved former Liberian president Charles Taylor. Taylor, who was charged and tried by the United Nations-backed Special Court for Sierra Leone ("SCSL'), was convicted in April 2013 for planning and aiding and abetting war crimes, crimes against humanity, and other serious international humanitarian law violations. He was sentenced to 50 years imprisonment. The SCSL Appeals Chamber upheld the historic conviction and sentence in September 2013. Taylor is currently serving his sentence in Great Britain.

This article, from an insider who …

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

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This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …

At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld

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On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …

Under The Prison Litigation Reform Act's So-Called Three Strikes Provision, When Does A Dismissal Count As A Strike: Coleman V. Tollefson (13-1333), Betsy Ginsberg

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The Prison Litigation Reform Act of 1996 amended the federal in forma pauperis statute to include, among other provisions, what has become known as the “three strikes provision.” Under this provision, prisoners who have accumulated three strikes—three dismissals of cases that were frivolous, malicious, or failed to state a claim—are no longer permitted to proceed in forma pauperis unless they can show immediate danger of serious physical injury. This case asks the Court to determine whether a dismissal by the district court immediately counts as a strike or whether it does not count until any appeal of the dismissal has …

Social Services Will Not Touch Us With A Barge Pole’: Social Care Provision For Older Prisoners, Kate O'Hara, Katrina Forsyth, Jane Senior, Caroline Stevenson, Adrian Hayes, David Challis, Jenny Shaw

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Older prisoners are the fastest growing subgroup in the English and Welsh prison estate. Older prisoners have high levels of health and social care needs. This mixed method study involved the distribution of a questionnaire examining the availability of health and social care services for older prisoners to all prisons housing adult males in England and Wales, followed by qualitative telephone interviews with representatives from eight prisons. Over half of establishments had some contact with external social care services but reported significant difficulties in arranging care for individuals. A professional lead for older prisoners had been identified in 81% of …

On Law-Breaking And Law's Legitimacy, Aliza Plener Cover

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No abstract provided.

Legal Education As A Rule Of Law Strategy - Problems And Opportunities With U.S.-Based Programs, David Pimentel

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No abstract provided.

The Role Of Non-Governmental Organizations In Advancing International Criminal Justice, Charles C. Jalloh

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This article examines the role of non-governmental organizations (NGOs) in advancing international criminal justice. I argue that NGOs have had considerable impact by contributing, among other things, to the global struggle against impunity through advocacy for the creation of more robust institutional mechanisms to prosecute those who perpetrate such crimes. This ranges from supporting the processes that led to the creation of several ad hoc international tribunals for Yugoslavia, Rwanda and Sierra Leone, all the way through to their support for the establishment of an independent permanent international penal court based in The Hague. The crux of my claim is …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

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No abstract provided.

Criminal Corruption: Why Broad Definitions Of Bribery Make Things Worse, Albert W. Alschuler

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No abstract provided.