Digital Commons Network^™

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

Articles

One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …

The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby

Articles

No abstract provided.

The Resistance Defense, Jenny E. Carroll

Articles

This article explores a previously ignored set of defendants "” those who choose to rely on a defense of resistance From Warren Jeffs the polygamist recently convicted of child rape in Texas to John Brown the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it Though their belief systems varied they appear throughout history in moments of social or political crisis and …

Learning From The Unique And Common Challenges: Clinical Legal Education In Jordan, Nisreen Mahasneh, Kimberly A. Thomas

Articles

Legal education worldwide is undergoing scrutiny for its failure to graduate students who have the problem-solving abilities, skills, and professional values necessary for the legal profession.1 Additionally, law schools at universities in the Middle East have found themselves in an unsettled environment, where greater demands for practical education are exacerbated by several factors such as high levels of youth unemployment. More specifically, in Jordan there is a pressing need for universities to respond to this criticism and to accommodate new or different methods of legal education. Clinical legal education is one such method.3 We use the term "clinical legal education" …

Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott

Articles

State legislatures enacted sex offender registration and notification (SORN) laws with the explicit and exclusive aim of reducing sex offender recidivism. The general idea that we ought to “regulate” released offenders — of any type — to reduce the likelihood of their returning to crime is an attractive one, at least in theory. Criminal recidivism generates significant social harm. Nevertheless, despite their now-widespread use, SORN laws became the norm without any systematic study of their consequences. Admittedly, the logic underlying these laws seems at first difficult to gainsay: if a known sex offender poses even a small risk to a …

When Federal And State Systems Converge: Foreign National Human Trafficking Victims Within Juvenile And Family Courts, Bridgette A. Carr

Articles

This article highlights the concerns facing foreign national children who are both victims of human trafficking and under the jurisdiction of juvenile and family courts. Human trafficking is modern day slavery in which individuals, including children, are compelled into service and exploited. Foreign national human trafficking victims in juvenile and family court systems must navigate both the state system and a complex federal immigration system. This article explains the federal benefits available to these children and identifies the best practice approaches for juvenile and family court systems to increase identification of and support for foreign national child trafficking victims.jfcj_1073

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

What A Load Of Hope: The Post-Racial Mixtape, Jeremiah Chin

Articles

This Comment analyzes how Supreme Court decisions and recent legislation have used the language of post-racialism to re-center whiteness through the law. Rather than using explicit racist language, the post-racial project exploits the language of historical antiracist efforts to negate experiences with discrimination while continuing a hostile environment for racial groups and promoting white supremacy in the United States.

Beginning with Supreme Court decisions on affirmative action, in Regents of the University of California v. Bakke and Grutter v. Bollinger, and school desegregation in Parents Involved in Community Schools v. Seattle School District No. 1, this Comment analyzes …

Rolling Back The Tide: Challenging The Criminalization Of Immigrants In Washington State, Angélica Cházaro

Articles

No abstract provided.

A Fresh Cut In An Old Wound–A Critical Analysis Of The Trayvon Martin Killing: The Public Outcry, The Prosecutors’ Discretion, And The Stand Your Ground Law, Tamara F. Lawson

Articles

If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, …

Apologies As Intellectual Property Remedies: Lessons From China, Xuan-Thao Nguyen

Articles

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of …

Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan

Articles

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ("crimmigration'), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of "cooperative federalism" that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting …

Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson

Articles

This Article canvasses the jurisdictional rules applicable in American Indian tribal territories-"Indian country." The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal …

Delineating Sexual Dangerousness, Fredrick E. Vars

Articles

Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This Article closes it. The due process balancing test used to evaluate standards of proof provides the framework. This Article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution. Applying decision theory with assumptions favoring the government, this Article calculates a minimum likelihood of recidivism …

Alternative Elements, Jessica A. Roth

Articles

The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …

Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt

Articles

No abstract provided.

The Police Gamesmanship Dilemma, Mary D. Fan

Articles

Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …

Deportation Is Different, Peter L. Markowitz

Articles

Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, were forced to navigate the labyrinth of immigration law alone, without appointed counsel. Others were lawul permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that …

Producing Governable Subjects: Images Of Childhood Old And New, Karen Smith

Articles

Conceptions of childhood in terms of ‘evil’ and ‘innocence’ transcend time and culture. These conflicting images are deployed by Chris Jenks as the Dionysian and Apollonian models of childhood to symbolize external and internal forms of control. Drawing on the literature on governmentality this paper revisits these models and introduces a third model, the ‘Athenian’ child, analogous and supplementary to those developed by Jenks. This model is necessary in order to take account of relatively recent strategies in the government of childhood, which, predicated on understandings of children in terms of competence and agency, operate via responsibility and reflexivity.

But That Is Absurd! Why Specific Absurdity Undermines Textualism, Linda Jellum

Articles

No abstract provided.

Tangled Up In Knots: How Continued Federal Jurisdiction Over Sexual Predators On Indian Reservations Hobbles Effective Law Enforcement To The Detriment Of Indian Women, Suzianne D. Painter-Thorne

Articles

Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with little fear of prosecution. As Fort Peck Tribal Chairman A.T. “Rusty” Stafne explained, “Our people are afraid because there are persons committing crimes against us at night and in broad daylight....We have criminals that are simply unafraid of prosecution.” Indeed, “[t]o a sexual predator, the failure to prosecute sex crimes against American Indian women is an invitation to prey with impunity.”

Congress has responded to the epidemic of reservation crime with the Tribal Law and Order Act27 (TLOA). But, as this article explains, the …

Big Law And Risk Management: Case Studies Of Litigation, Deals, And Diversity, Anthony V. Alfieri

Articles

No abstract provided.

Controlling Sexually Violent Predators: Continued Incarceration At What Cost?, Tamara Rice Lave

Articles

Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws-that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the "new penology." I argue that the SVP laws show the limited promise of the new penology—that we can use science to predict risk accurately--because the …

Establishing Connections: Gender, Motor Vehicle Theft, And Disposal Networks, Christopher W. Mullins, Michael Cherbonneau

Articles

As with most other serious street crimes, motor vehicle theft is a male-dominated offense. Yet, women do engage in motor vehicle theft, albeit at a reduced rate of participation. Here we examine the gendered nature of motor vehicle theft through direct comparison of qualitative data obtained from 35 juvenile and adult men and women actively involved auto theft in St. Louis, Missouri. By tracing similarities and differences between men’s and women’s pathways of initial involvement, enactment strategies, and post-theft acts, we provide a contextual analysis of offender’s perceptions and behavior. Such an approach allows a more precise discussion on gender’s …

The Constitutionality Of Proposition 8, Richard A. Epstein

Articles

No abstract provided.

Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares

Articles

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches-namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question …

Failing Juvenile Courts And What Lawyers And Judges Can Do About It, Emily Buss

Articles

No abstract provided.

The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq

Articles

A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a …

Rethinking The Interest-Convergence Thesis, Justin Driver

Articles

No abstract provided.

Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel

Articles

No abstract provided.