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Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas Dec 2013

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Articles

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …


Standing For The Structural Constitution, Aziz Huq Nov 2013

Standing For The Structural Constitution, Aziz Huq

Articles

No abstract provided.


Mock Trials And Real Justices And Judges, Richard A. Posner Aug 2013

Mock Trials And Real Justices And Judges, Richard A. Posner

Articles

No abstract provided.


Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco May 2013

Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

Cost-benefit analysis (CBA) is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates significant systemic errors. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from studies in the field of hedonic psychology that track people's actual experience …


The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein May 2013

The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein

Articles

No abstract provided.


Prison Policy In Times Of Austerity: Lessons From Ireland, Mary Rogan May 2013

Prison Policy In Times Of Austerity: Lessons From Ireland, Mary Rogan

Articles

The catastrophic collapse in the once booming Irish economy has led to swingeing budgets, huge falls in property prices, rising unemployment, cut backs in public services, and the ignominy of a bailout financed by the International Monetary Fund, the European Union and the European Central Bank. As has been the case for all aspects of public expenditure, prison policy-makers are now regularly using the language of efficiency and value for money when discussing plans for Ireland’s prisons. The state’s current economic woes are having some interesting effects on the direction of prison policy. Plans are afoot to reduce the prison …


Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq Apr 2013

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq

Articles

No abstract provided.


Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh Apr 2013

Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh

Articles

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence "to prosecute those who bear the greatest responsibility" for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …


The Widening Maturity Gap: Trying And Punishing Juveniles As Adults In An Era Of Extended Adolescence, David Pimentel Jan 2013

The Widening Maturity Gap: Trying And Punishing Juveniles As Adults In An Era Of Extended Adolescence, David Pimentel

Articles

No abstract provided.


Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert Alschuler Jan 2013

Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert Alschuler

Articles

No abstract provided.


Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner Jan 2013

Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner

Articles

No abstract provided.


Policing Immigration, Thomas J. Miles, Adam B. Cox Jan 2013

Policing Immigration, Thomas J. Miles, Adam B. Cox

Articles

No abstract provided.


The Institutional Structure Of Immigration Law, Eric A. Posner Jan 2013

The Institutional Structure Of Immigration Law, Eric A. Posner

Articles

No abstract provided.


Community Education And Access To Justice In A Time Of Scarcity: Notes From The West Grove Trolley Garage Case, Anthony V. Alfieri Jan 2013

Community Education And Access To Justice In A Time Of Scarcity: Notes From The West Grove Trolley Garage Case, Anthony V. Alfieri

Articles

No abstract provided.


"He Is The Darkey With The Glasses On": Race Trials Revisited, Anthony V. Alfieri Jan 2013

"He Is The Darkey With The Glasses On": Race Trials Revisited, Anthony V. Alfieri

Articles

No abstract provided.


Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein Jan 2013

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein

Articles

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …


Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby Jan 2013

Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby

Articles

No abstract provided.


A Match Made On Earth: Getting Real About Science And The Law, Susan Haack Jan 2013

A Match Made On Earth: Getting Real About Science And The Law, Susan Haack

Articles

Modern legal systems increasingly depend on scientific testimony; but they also need somehow to ensure, so far as possible, that fact-finders aren't misled by highly speculative, poorly-conducted, or dishonestly-presented science. The Critical Common-sensist understanding of science that the author has developed in Defending Science and elsewhere sheds some light on why these interactions between law and science have proven so problematic. But Ms. Acharya's approach to these difficult issues rests on a flawed conception of the supposed "scientific method, " and an idea of legal "legitimacy" too weak to bear the weight she places on it; and her claim that …


Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy Jan 2013

Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy

Articles

I devoted a great deal of my teaching energy during the last ten years of my tenure at the University of Minnesota Law School to a course I called the Sentencing Workshop. The Workshop provided a unique opportunity for law students and judges to learn from each other about the intricacies, the successes and failures of the American criminal justice sentencing structure and practice. I will describe it in three phases: initially, to give some context, I will report a dramatic Workshop discussion which occurred the fth or sixth year the course was o ered. A short summary of the …


Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain Jan 2013

Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain

Articles

International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. In this paper, I draw on the insights of comparative law and methodology to propose a new doctrine of perpetration that reflects the role and function of high level participants in mass atrocity while …


Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld Jan 2013

Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld

Articles

The Supreme Court in Roper v. Simmons 1 prohibited states from executing offenders for murders committed when younger than eighteen years of age. Roper found a national consensus existed against executing adolescents based on state statutes and jury practices. 2 The Justices also conducted an independent proportionality analysis and concluded that youths' immature judgment, susceptibility to negative peer influences, and transitory personality development reduced their culpability and precluded the most severe sentence. 3


"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin Jan 2013

"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin

Articles

Reviewing Thomas U. Berger, War Guilt, and World Politics After World War II (2012), Larry May, After War Ends: A Philosophical Perspective (2012), and Kimberly Theidon, Intimate Enemies: Violence and Reconciliation in Peru (2012).


Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin Jan 2013

Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin

Articles

Transitional Justice as a motif, a discourse and a practice continues to entice analysis from scholars, practitioners and policy makers. It is a field that has rapidly expanded, and that has both the fortune and disadvantage of being termed an "industry." The growth of transitional justice is both an opportunity and a warning, as the challenges raised by massive human rights violations and transitions from violence to peace or from repressive regimes to more liberal ones continue to preoccupy scholars and practitioners. Each new country specific context facilitates revisiting old trade-offs and concepts revealing new elements to transitional dilemmas.


The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer Jan 2013

The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer

Articles

This paper was prepared for the 2012 Clifford Symposium honoring Marc Galanter which was held at DePaul Law School. One aspect of Galanter’s recent work is on the phenomenon he labeled the “vanishing trial.” In this paper I examine the problems that arise when one seeks to count the number of trials. I show that the definition of a trial, other than a jury trial, is highly ambiguous. There are many trial-like events taking place in venues we do not label “courts.” Even in the court setting, and even for jury trials, there are vast differences in when a trial …


Jury Size And The Hung-Jury Paradox, Francesco Parisi, Barbara Luppi Jan 2013

Jury Size And The Hung-Jury Paradox, Francesco Parisi, Barbara Luppi

Articles

Juries are a fundamental element of the criminal justice system. In this article, we model jury decision making as a function of two institutional variables: jury size and voting requirement. We expose the critical interdependence of these two elements in minimizing the probabilities of wrongful convictions, of wrongful acquittals, and of hung juries. We find that the use of either large nonunanimous juries or small unanimous juries offers alternative ways to maximize the accuracy of verdicts while preserving the functionality of juries. Our framework, which lends support to the elimination of the unanimity requirement in the presence of large juries, …


Erie's Starting Points: The Potential Role Of Default Rules In Structuring Choice Of Law Analysis, Allan Erbsen Jan 2013

Erie's Starting Points: The Potential Role Of Default Rules In Structuring Choice Of Law Analysis, Allan Erbsen

Articles

This contribution to a symposium marking the seventy-fifth anniversary of Erie Railroad Company v. Tompkins is part of a larger project in which I seek to demystify a decision that has enchanted, entangled, and enervated commentators for decades. In prior work I contended that the “Erie doctrine” is a misleading label encompassing four distinct inquiries that address the creation, interpretation, and prioritization of federal law and the adoption of state law when federal law is inapplicable. This article builds from that premise to argue that courts pursuing Erie’s four inquiries would benefit from default rules that establish initial assumptions and …


Neuroscience, Mental Privacy, And The Law, Francis X. Shen Jan 2013

Neuroscience, Mental Privacy, And The Law, Francis X. Shen

Articles

Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching. Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But …


Next Generation Civil Rights Lawyers: Race And Representation In The Age Of Identity Performance, Anthony V. Alfieri, Angela Onwuachi-Willig Jan 2013

Next Generation Civil Rights Lawyers: Race And Representation In The Age Of Identity Performance, Anthony V. Alfieri, Angela Onwuachi-Willig

Articles

This Book Review addresses two important new books, Professor Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati's Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to both explore the challenges that face the next generation of civil rights lawyers and offer suggestions on how this next generation of civil rights lawyers can overcome these difficulties. Overall, this Book Review highlights one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to perform their identities in …


Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan L. Jacobowitz, Kelly Rains Jesson Jan 2013

Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan L. Jacobowitz, Kelly Rains Jesson

Articles

No abstract provided.


On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr Jan 2013

On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr

Articles

With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams' article, The Impriasoner's Dilemma: A Cost-Benefit Approach to Incarceration,' makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams' piece and discuss the possible case that could be made for incorporating formal cost-benefit …