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Promoting Equality After Genocide, Sheri P. Rosenberg Apr 2008

Promoting Equality After Genocide, Sheri P. Rosenberg

Articles

The value of equality has little currency after genocide and ethnic cleansing. Restoring that value is no easy feat. Paramount, though not singular, in this struggle for equality is the role of the law A State establishes its common legal rights and duties through its legal institutions, which define the values and character of the nation. Legal institutions mediate these values and norms and through legal pronouncements provide a template for future civic engagement and social interaction. Equality and antidiscrimination jurisprudence is particularly important during the delicate period of transition alter genocide, because it grounds within society the normative shift …


Failed Lawyers And The Sources Of Satire, Charles M. Yablon Apr 2008

Failed Lawyers And The Sources Of Satire, Charles M. Yablon

Articles

Most of those reading this Essay have ample reason to appreciate the benefits of a good legal education. There is pride in becoming a member of an ancient and learned profession, intellectual challenge in wrestling with complex questions of equity, power and social justice, and satisfaction in the sense of superiority you feel towards your loser friends who did not get into a decent law school.


The Experience Of Young People Remanded In Custody: A Case For Bail Support And Supervision Schemes, Sinead Freeman Jan 2008

The Experience Of Young People Remanded In Custody: A Case For Bail Support And Supervision Schemes, Sinead Freeman

Articles

This article focuses on the potential role and benefits bail support and supervision(BSS) schemes may have for young people in the Irish context. This article is based on a wider Ph.D study examining the issue of coping on remand. The research used court observation and semi-structured interviews conducted with young prisoners aged 16 to 21 years in remand custody. The findings indicate that young people often end up in remand custody as a result of non-compliance with bail. The case is made arising from the research, that the operation of bail support and supervision (BSS) schemes may benefit these young …


A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt Jan 2008

A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Articles

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review articles of Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist …


Privacy Versus Antidiscrimination, Lior Strahilevitz Jan 2008

Privacy Versus Antidiscrimination, Lior Strahilevitz

Articles

No abstract provided.


Plea Bargaining And The Death Penalty, Albert Alschuler Jan 2008

Plea Bargaining And The Death Penalty, Albert Alschuler

Articles

No abstract provided.


Reputation Nation: Law In An Era Of Ubiquitous Personal Information, Lior Strahilevitz Jan 2008

Reputation Nation: Law In An Era Of Ubiquitous Personal Information, Lior Strahilevitz

Articles

No abstract provided.


Studying The Exclusionary Rule: An Empirical Classic, Albert Alschuler Jan 2008

Studying The Exclusionary Rule: An Empirical Classic, Albert Alschuler

Articles

No abstract provided.


Constitutional Courts In East Asia: Understanding Variation, Tom Ginsburg Jan 2008

Constitutional Courts In East Asia: Understanding Variation, Tom Ginsburg

Articles

No abstract provided.


Prosecuting The Jena Six, Anthony V. Alfieri Jan 2008

Prosecuting The Jena Six, Anthony V. Alfieri

Articles

No abstract provided.


Jessica Gonzales V. United States: An Emerging Model For Domestic Violence & Human Rights Advocacy In The United States, Caroline Bettinger-López Jan 2008

Jessica Gonzales V. United States: An Emerging Model For Domestic Violence & Human Rights Advocacy In The United States, Caroline Bettinger-López

Articles

No abstract provided.


Limiting Excessive Prison Sentences Under Federal And State Constitutions, Richard Frase Jan 2008

Limiting Excessive Prison Sentences Under Federal And State Constitutions, Richard Frase

Articles

No abstract provided.


Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty Jan 2008

Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty

Articles

This Article considers the viability of a constitutional challenge to the disproportionate confinement of juveniles of color – a phenomenon known as “disproportionate minority contact” or “DMC.” Specifically, I ask whether, in the wake of McCleskey v. Kemp and its progeny, it is possible bring an Equal Protection claim based on statistical evidence that juveniles of color are significantly more likely to be detained by juvenile court judges than similarly-situated white youth. I argue that the nature of the juvenile detention decision places it squarely within the contours of the types of administrative decisions for which the Supreme Court has …


Learning From The Limitations Of Deterrence Research, Michael Tonry Jan 2008

Learning From The Limitations Of Deterrence Research, Michael Tonry

Articles

No abstract provided.


The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski Jan 2008

The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski

Articles

No abstract provided.


A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld Jan 2008

A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld

Articles

The Supreme Court in Roper v. Simmons 1 interpreted the Eighth Amendment to prohibit states from executing offenders for crimes they committed when younger than eighteen years of age. The Court relied on objective indicators of "evolving standards of decency," such as state statutes and jury decisions to support its judgment that a national consensus existed against executing adolescents. The Justices also conducted an independent proportionality analysis of youths' criminal responsibility and concluded that their reduced culpability warranted a categorical prohibition of execution. Juveniles' immature judgment, susceptibility to negative peer influences, and transitory personality development diminished their criminal responsibility. Because …


Terror Conflated?, Fionnuala Ní Aoláin Jan 2008

Terror Conflated?, Fionnuala Ní Aoláin

Articles

This review of Eric Posner & Adrian Vermeule's book Terror in the Balance Security, Liberty and the Courts is constructed in part as a response not only to this scholarly work but also to recent executive and policy directions which suggest that substantial deference should be given to the executive in times of crisis, that courts should defer competence and that any harms inflicted upon civil liberties by executive action are overstated by interests with little competence in the core arena of security.


Horizontal Federalism, Allan Erbsen Jan 2008

Horizontal Federalism, Allan Erbsen

Articles

This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their …


What's Wrong With Litigation-Driven Science? An Essay In Legal Epistemology, Susan Haack Jan 2008

What's Wrong With Litigation-Driven Science? An Essay In Legal Epistemology, Susan Haack

Articles

No abstract provided.


Rethinking Indivisibility: Towards A Theory Of Supporting Relations Between Human Rights, James W. Nickel Jan 2008

Rethinking Indivisibility: Towards A Theory Of Supporting Relations Between Human Rights, James W. Nickel

Articles

No abstract provided.


Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien Jan 2008

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

Articles

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …


International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi Jan 2008

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Articles

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …


The Human Rights Quagmire Of 'Human Trafficking', James C. Hathaway Jan 2008

The Human Rights Quagmire Of 'Human Trafficking', James C. Hathaway

Articles

Support for the international fight against "human trafficking" evolved quickly and comprehensively. The campaign launched by the UN General Assembly in December 19981 led to adoption just two years later of the Trafficking Protocol to the UN Convention against Organized Crime.2 U.S. President George W. Bush was among those particularly committed to the cause, calling for collective effort to eradicate the "special evil" of human trafficking, said by him to have become a "humanitarian crisis."3 One hundred and twenty-two countries have now ratified the Trafficking Protocol, agreeing in particular to criminalize trafficking and to cooperate in investigating and prosecuting allegations …


The Impact Of Traumatic Stress And Alcohol Exposure On Youth: Implications For Lawyers, Judges, And Courts, Frank E. Vandervort Jan 2008

The Impact Of Traumatic Stress And Alcohol Exposure On Youth: Implications For Lawyers, Judges, And Courts, Frank E. Vandervort

Articles

Since its inception in the late nineteenth century, the juvenile court has been concerned with the legal problems of children and their families. From the court’s earliest days, it has sought to address child abuse and neglect and juvenile delinquency as social problems that result from familial and community breakdown. Over the decades, researchers from various disciplines have provided varying explanations of how and why family systems break down, why some parents fail to nurture their children, why some physically or sexually abuse their children, and why some children become delinquent.


Human Rights At Home: Domestic Violence As A Human Rights Violation, Caroline Bettinger-López Jan 2008

Human Rights At Home: Domestic Violence As A Human Rights Violation, Caroline Bettinger-López

Articles

No abstract provided.


The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson Jan 2008

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …


Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas Jan 2008

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

Articles

Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …


Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran Jan 2008

Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran

Articles

I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …


Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay Jan 2008

Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay

Articles

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons—closed institutions holding an ever-growing disempowered population—most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which …


Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran Jan 2008

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …