Digital Commons Network^™

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

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No abstract provided.

The Prosecutorial Ethic: With Great Power Comes Great Responsibility, Maureen Howard

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Although the American trial system has been likened to an arena in which mental combatants fight “to the death ” (the verdict ), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different from that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

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When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Taking The High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, Maureen A. Howard

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In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges.

A Post-Race Equal Protection?, Mario L. Barnes, Erwin Chemerinsky, Trina Jones

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No abstract provided.

Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert

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Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …

National Security And The Shadows Of Judicial "Common Sense", Alexander A. Reinert

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The article critiques Peter Margulies's analysis of cognitive biases in judicial decision-making within national-security cases, particularly his proposed evidentiary presumption to address these biases. While acknowledging Margulies's contribution to the discussion, the article argues that his characterization of cases and proposed solution may oversimplify the complexities of judicial deference and interventionism. It suggests that the central issue in these cases is not excessive deference or interventionism but rather the government's resistance to transparency and the disclosure of sensitive information. The article advocates for a more nuanced approach, emphasizing managed discovery processes to balance national-security concerns with constitutional rights.

Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

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In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Welfare As Happiness, John Bronsteen, Christopher Buccafusco, Jonathan Masur

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Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Toward A General Theory Of Standards Of Proof, Fredrick E. Vars

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Which standard of proof is best for a particular type of case This deceptively simple question has been much discussed but the current state of understanding is unsatisfactory Statisticians posed a general answer philosophers and others launched an assault on that answer practically oriented scholars draw on both strains unsystematically and courts generally offer little or no reasoning for their decisions The goal of this article is to outline a systematic and complete justification for selecting one probabilistic standard of proof over another By training a microscope on one small corner of the law incapacity will contests this article demonstrates …

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

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Scholars have long debated Congress's power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress's authority if any must be judicially enforceable and found in the text and structure of Article III In this Article I challenge that fundamental assumption I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I These Article I lawmaking procedures give competing political factions even political minorities considerable power to "veto" legislation Drawing on recent social science and legal scholarship I argue that political factions are particularly likely …

Rodrigo's Reconsideration: Intersectionality And The Future Of Critical Race Theory, Richard Delgado

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No abstract provided.

“We Are Going To Rape You And Taste Tutsi Women”: Rape During The 1994 Rwandan Genocide, Christopher W. Mullins

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Over the past decades, scholars have paid greater attention to sexual violence, in both theorization and empirical analysis. One area which has been largely ignored, however, is the sexual violence during times of armed conflict. This paper examines the nature and dynamics of sexual violence as it occurred during the 1994 Rwandan genocide. Drawing upon testimonies given to the International Criminal Tribunal for Rwanda (ICTR), descriptions of rapes--both singular and mass—were qualitatively analyzed. In general, three broad types of assaults were identified: opportunistic, assaults which seemed to be a product of the disorder inherent within the conflict; episodes of sexual …

Rethinking Categorical Prohibitions On Capital Punishment: How The Current Test Fails Mentally Ill Offenders And What To Do About It, Pamela A. Wilkins

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My aim in this short Article is both specific and general. Specifically, I examine whether the Eighth Amendment should be held to prohibit imposition of death sentences upon offenders with severe mental illnesses, as is the case with mentally retarded and juvenile offenders. More generally, and perhaps more importantly, I examine the current Eighth Amendment test for categorical prohibitions, find it wanting, and propose a different test that, at least in my view, more neatly captures what the Eighth Amendment is intended to accomplish.

I believe the key to an Eighth Amendment analysis of categorical prohibitions lies in two dilemmas …

Happiness And Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco

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This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …

Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler

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No abstract provided.

Two Ways To Think About The Punishment Of Corporations, Albert W. Alschuler

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No abstract provided.

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

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No abstract provided.

The Modernizing Mission Of Judicial Review, David A. Strauss

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Constitutional interpretation, as it is usually conceived, looks to the past-to an old text, to history, to precedent, to tradition-in an effort to limit political majorities But over the last generation or so, a different approach to the Constitution has emerged. That approach, which might be called modernization, tries to anticipate trends in public opinion instead of taking lessons from the past; and a modernizing court, instead of facing down popular majorities, yields when it finds out that it has misgauged public opinion. This modernizing approach has characterized the Supreme Court's recent work in many disparate areas, including, among others, …

Rethinking The Connection Between Developmental Science And Juvenile Justice, Emily Buss

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No abstract provided.

Gun Control After Heller: Threats And Sideshows From A Social Welfare Perspective, Jens Ludwig, Adam M. Samaha, Philip J. Cook

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What will happen after District of Columbia v. Heller? We know that five justices on the Supreme Court now oppose comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and maybe only at the time of, self-defense. Perhaps the justices will push further and apply Heller's holding to state and local governments via the Fourteenth Amendment. But the majority opinion in Heller offered limited guidance for future cases. It did not follow a purely originalist method of constitutional interpretation, nor did it establish a constraining doctrinal framework for evaluating firearms regulation-although the …

What Explains Persistent Racial Disproportionality In Minnesota's Prison And Jail Populations?, Richard Frase

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No abstract provided.

The Mostly Unintended Effects Of Mandatory Penalties: Two Centuries Of Consistent Findings, Michael Tonry

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No abstract provided.

The Untold Story Of America's First Sentencing Commission, Michael Tonry

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No abstract provided.

Second Look Provisions In The Proposed Model Penal Code Revisions, Richard Frase

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No abstract provided.

Norval Morris's Contributions To Sentencing Structures, Theory, And Practice, Richard Frase

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No abstract provided.

The Administration Of Justice And Human Rights, David Weissbrodt

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This article discusses the place of international human rights standards - as elaborated in global and regional treaties, other instruments, and authoritative interpretations - in the advancement of the administration of justice. The administration of justice includes the norms, institutions, and frameworks by which states seek to achieve fairness and efficiency in dispensing criminal, administrative, and civil justice. The United Nations, regional organisations, and other international structures have codified a substantial framework of fair trial and other administration of justice standards, which have been accepted, albeit not always followed, by most nations and which have begun to be used in …

Empirical Legal Studies Before 1940: A Bibliographic Essay, Herbert M. Kritzer

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The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is an extensive bibliographic essay that surveys the English language empirical legal research from approximately 1940 and earlier. The essay is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt …

Gender And The Rule Of Law In Transitional Societies, Fionnuala Ní Aoláin, Michael Hamilton

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This article examines a unique relationship—specifically, the connection between the rule of law, as it is imported and experienced in post-conflict/post-repression societies, and gender. We assert that some of the most gendered and problematic dimensions of rule of law discourse and practice can arise with intensity in post-conflict or post-repressive societies. In particular, we explore a fundamental contradiction. Transitional societies bring powerful and transformative moments to global attention.

Jim Crow Ethics And The Defense Of The Jena Six, Anthony V. Alfieri

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This Article is the second in a three-part series on the 2006 prosecution and defense of the Jena Six in LaSalle Parish, Louisiana. The series, in turn, is part of a larger, ongoing project investigating the role of race, lawyers, and ethics in the American criminal-justice system. The purpose of the project is to understand the race-based, identity-making norms and practices of prosecutors and defenders in order to craft alternative civil rights and criminal-justice strategies in cases of racially-motivated violence. To that end, this Article revisits the prosecution and defense of the Jena Six in the hope of uncovering the …