Digital Commons Network^™

Cruel And Invisible Punishment: Redeeming The Counter-Majoritarian Eighth Amendment, Aliza Plener Cover

Articles

No abstract provided.

Opt-Out Education: School Choice As Racial Subordination, Osamudia R. James

Articles

Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and …

Treaty Termination And Historical Gloss, Curtis A. Bradley

Articles

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Objecting To Race, Anthony V. Alfieri

Articles

No abstract provided.

Criminalizing Revenge Porn, Danielle Citron, Mary Anne Franks

Articles

No abstract provided.

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty's Unraveling, Scott E. Sundby

Articles

No abstract provided.

Military Justice As Justice: Fitting Confrontation Clause Jurisprudence Into Military Commissions, Christina Frohock

Articles

The Guantánamo prosecution of Abd al-Rahim al-Nashiri, the alleged mastermind behind the deadly USS Cole bombing, highlights an unresolved issue in military commissions: whether the Confrontation Clause of the Sixth Amendment to the Constitution applies to bar hearsay statements of unavailable witnesses. While al-Nashiri's counsel recently moved for the military judge to take judicial notice that the Confrontation Clause applies, it is worth considering that the question may be framed differently. Rather than ask whether the Confrontation Clause applies in a military commission, we may ask whether a "testimonial statement" - the only kind of hearsay evidence that triggers the …

Guest Editor's Observations: Recurring Policy Issues Of Guidelines (And Non-Guidelines) Sentencing: Risk Assessments, Criminal History Enhancements, And The Enforcement Of Release Conditions, Richard Frase

Articles

No abstract provided.

People Who Are Not Legal And Who Are Not Alive In The Eyes Of The Law, Richard W. Painter

Articles

No abstract provided.

Why Crime Rates Are Falling Throughout The Western World, Michael Tonry

Articles

Crime rates have moved in parallel in Western societies since the late Middle Ages. Homicide rates declined from 20 to 100 per 100,000 population in western Europe to one per 100,000 in most Western countries by the beginning of the twentieth century. Crime rates in major cities and in countries fell from the early nineteenth century until the middle of the twentieth. From the 1960s to the 1990s, rates for violent and property crimes rose in all wealthy Western countries. Since then, rates in all have fallen precipitately for homicide, burglary, auto theft, and other property crimes. The patterns appear …

Legal And Ethical Issues In The Prediction Of Recidivism, Michael Tonry

Articles

Use of predictions of recidivism is ubiquitous in American criminal justice systems from pretrial detention to parole release and proceeds largely oblivious to fundamental ethical problems that were widely recognized and examined in the 1970s. They include the false positive problem that most people predicted to commit acts of serious violence would not, and their confinement for that reason is unjustified, that common use of fixed characteristics such as age and gender punish people for matters over which they have no control is per se unjust, that commonly used socioeconomic factors such as marital status, employment, education, and living discrimination, …

Reflections On The Indictment Of Sitting Heads Of State And Government And Its Consequences For Peace And Stability And Reconciliation In Africa, Charles Chernor Jalloh

Articles

In these remarks, the author considers the most recent challenge to the application of international criminal justice in Africa: Kenya's controversial November 2013 proposal to amend the Rome Statute of the International Criminal Court to temporarily exempt from prosecution sitting presidents accused of involvement with international crimes. He examines several legal and practical reasons why such a proposal is untenable. Instead, citing the principle of complementarity and urging the principled use of judicial and prosecutorial discretion, he contends that much of the African Union's current concerns about the Kenya Situation can be addressed within the confines of existing Rome Law. …

The Role Of Mindfulness In The Ongoing Evolution Of Legal Education, Scott L. Rogers

Articles

No abstract provided.

Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci

Articles

Child maltreatment (CM) reporting laws and policies have an important role in the identification, treatment, and prevention of CM in the United States (U.S. Department of Health and Human Services [US DHHS], 2012). Abuse by a member of the clergy “is not only a personal and emotional betrayal, but [also] a spiritual betrayal, with secrecy amplified by the unprecedented and systemic cover-up committed by the Church hierarchy” (Coyne, 2011, p. 15). Recent controversies have resulted in the consideration of changes in mandated U.S. reporting laws that include increasing requirements for clergy and extension to additional professions (Freeh, Sporkin, & Sullivan, …

Family Courts Are Here To Stay, So Let's Improve Them, Barbara A. Babb

Articles

The article presents a commentary in response to the White Paper of the Institute for the Advancement of the American Legal System's Honoring Families Initiative on the court and separating and divorcing families. Topics include the mission, function and structure of family courts, therapeutic jurisprudence, and the design of a unified family court. It also discusses the ecology of human development.

Regional Integration In Africa, Charles Chernor Jalloh, Ademola Abass

Articles

No abstract provided.

Special Issue: International Criminal Justice Issues In Africa: Editorial, Charles Chernor Jalloh

Articles

No abstract provided.

The Jury As Democracy, Jenny E. Carroll

Articles

Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

Prosecutorial discretion exists throughout the criminal justice system but plays a particularly significant role for environmental crime. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. As a result, there has been uncertainty about which environmental violations will result in criminal enforcement and persistent claims about the overcriminalization of environmental violations. To address these concerns — and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme — I have proposed that prosecutors should reserve criminal enforcement for violations that involve one or more of the following …

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Articles

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Roll Back "Prison Nation", Donna Coker

Articles

No abstract provided.

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

Articles

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

Rodrigo's Equation: Race, Capitalism, And The Search For Reform, Richard Delgado

Articles

No abstract provided.

Citizen Participation: Appraising The Saiban’In System, Daniel H. Foote

Articles

Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban'in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the …

Sentencing In Tax Cases After Booker: Striking The Right Balance Between Uniformity And Discretion, Scott A. Schumacher

Articles

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines. In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review. However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as …

Racial Profiling As Collective Definition, Trevor G. Gardner

Articles

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice.

However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In this article, I review the literature on group distinction to …

Offering Minority Communities Equal Opportunities Through Entrepreneurship, Thomas M. Cooney

Articles

A substantial body of research has been undertaken in recent years giving prominence to the additional and distinctive challenges faced by female entrepreneurs and by ethnic entrepreneurs. However, other groups of minority entrepreneurs have received relatively little attention and so remain underexplored within entrepreneurship literature. This article introduces some of these minority communities (Ex–Prisoners, Disabled People, Travellers/Gypsies, Grey and Gay) and highlights the research opportunities that exist for entrepreneurship academics who might wish to analyse such ‘silent’ minorities. These communities are all relatively large in terms of population numbers, require tailored support to overcome distinctive economic, social and personal obstacles, …

Shaken Baby Syndrome On Trial, Keith A. Findley, Barry Scheck

Articles

This is a short review of Deborah Tuerkheimer's book, "Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice" (Oxford University Press 2014).

The Anomaly Of Entrapment, Jessica A. Roth

Articles

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may …