Digital Commons Network^™

How Taiwan's Constitutional Court Reined In Police Power: Lessons For The People's Republic Of China, Margaret K. Lewis, Jerome A. Cohen

Faculty Articles

The article discusses the lessons that the People's Republic of China can reportedly learn from the Taiwan Constitutional Court's apparent reining in of Taiwanese police power as of May 2014, focusing on the structure of constitutional review in Taiwan and the legal regime for punishing "hooligans (liumang). The principle of legal clarity is addressed, along with a secret witness system and the legal right to confront and examine a witness. Taiwan's criminal procedure code is examined.

Ineffable Intuition And Unreasonable Suspicion: Our Rule Of Law Failure, John E. Sexton, Justin Sommerkamp, Justin Martin

Faculty Articles

The article focuses on issues surrounding searches, seizures and reasonable suspicion under the U.S rule of law. Topics discussed include the U.S Supreme Court Chief Justice Earl Warren's opinion in case Terry v. Ohio that addressed the Fourth Amendment prohibition on unreasonable searches and seizures, the Supreme Court's decision in case Whren v. United States that addressed traffic offense committed by a driver and the Fourth Amendment prohibition and the U.S Equal Protection Clause.

The Cure For Young Prosecutors' Syndrome, Ronald F. Wright, Kay L. Levine

Faculty Articles

Although legal scholars treat prosecutors like interchangeable parts, we argue—based on interviews and surveys of over 200 state prosecutors in eight offices—that scholars should be alert to the differences among them, because new prosecutors experience their professional role differently than their veteran colleagues do. This divergence happens because, as new prosecutors gain experience, their professional identities shift—they become more balanced over time. This Article explores the prosecutor’s professional transformation and the possible catalysts for that change.

When experienced prosecutors describe their career trajectories, they regret the highly adversarial posture they adopted earlier in their careers. While the constant quest for …

Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin

Faculty Articles

The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection …

Impeachment By Unreliable Conviction, Anna Roberts

Faculty Articles

This article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. The article draws on three aspects of the contemporary criminal justice system to show that in admitting convictions for impeachment courts are wrongly assuming that they are necessarily reliable indicators of relative culpability. First, courts assume that convictions are the product of a fair fight, despite the adversarial collapse revealed by the nature of plea-bargaining, the crisis in public defense, and the data on wrongful convictions; second, courts assume that convictions demonstrate relative culpability, despite …

The Siren Is Calling: Economic And Ideological Trends Toward Privatization Of Public Police Forces, Karena Rahall

Faculty Articles

The landmark Supreme Court ruling in Citizens United has opened the floodgates to allow unlimited corporate campaign donations, and Supreme Court doctrine is shifting back to the Lochner-era's focus on economic rights. At the same time, there are efforts underway across the United States to privatize public services in order to alleviate what proponents claim is a shortfall in revenue due to the recession. Within those privatization efforts, public policing has become a new front, with outsourcing and wholesale privatization of the police underway. This article adds to the existing scholarship a political analysis of privatization efforts, including how lobbying …

This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi

Faculty Articles

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This article suggests that may not always be true. This article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

“If They Hand You A Paper, You Sign It”: A Call To End The Sterilization Of Women In Prison, Sara Ainsworth, Rachel Roth

Faculty Articles

The context in which the sterilization of incarcerated women takes place is a deeply coercive one. The practice of sterilizing incarcerated women, whether intentionally coerced or not, takes place against a backdrop of mass incarceration and the long and ignominious history of forced and coerced sterilizations directed at poor people and women of color in the United States. Professor Sara Ainsworth and Dr. Rachel Roth explore this backdrop, and the federal sterilization regulations that arose from this history and from women's activism to change it, in Part I. In Part II, they explain how the appallingly bad and often unconstitutional …

Of "Texans" And "Custers": Maximizing Welfare And Efficiency Through Informal Norms, M. Alexander Pearl

Faculty Articles

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal …

Mcjobs And Pieces Of Flair: Linking Mcdonaldization To Alienating Work, Linda Ann Treiber

Faculty Articles

This article offers strategies for teaching about rationality, bureaucracy, and social change using George Ritzer’s The McDonaldization of Society and its ideas about efficiency, predictability, calculability, and control. Student learning is facilitated using a series of strategies: making the familiar strange, explaining McDonaldization, self-investigation and discovery, and exploring and implementing alternatives. Through assignments, class exercises, and films, students contextualize modernity and its unintended negative consequences by viewing McDonaldization though the lenses of work and jobs. These strategies provide a framework to help students understand key concepts, critique McDonaldization, and formulate positive ways to cope with Weber’s iron cage.

Social Versus Conservative Democracies And Homicide Rates, Marcus Marktanner, Luc Noiset

Faculty Articles

Purpose – The purpose of this paper is to critique recent findings that democratic practices are positively related to homicide rates. Design/methodology/approach – Economic rational choice model supported by empirical evidence. Findings – It was found that higher homicide rates are only characteristic of democracies that fail to respond to the median voter's call for equitable social development. Originality/value – The paper makes an original distinction between conservative and social democracies, operationalizes this distinction theoretically and empirically, and shows that higher homicide rates are a phenomenon of conservative, not social, democracies.

Interdisciplinary Professional Education: Training College Students For Collaborative Social Change, Monica Nandan, Manuel London

Faculty Articles

Purpose – The purpose of this paper is to provide a rationale for developing interprofessional competencies among graduates from professional and graduate programs, so that they are well prepared to participate in local, national and global social change strategies. Design/methodology/approach – After reviewing the literature on strategic social change initiatives the authors briefly describe two such initiatives: corporate social responsibility initiatives and social entrepreneurial ventures. After reviewing the interprofessional literature from various disciplines and professions, the authors categorized them into “competencies,” “rationale,” “conceptual framework,” “principles” and “challenges.” An examination of exemplar pedagogy from this body of literature suggests ways to …

The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin E. Murphy

Faculty Articles

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …

Prosecutorial Administration: Prosecutor Bias And The Department Of Justice, Rachel E. Barkow

Faculty Articles

The article discusses the way in which federal prosecutors help establish U.S. criminal justice policy, with focus given to the impact of prosecutorial bias on the operations of the U.S. Department of Justice (DOJ). More specifically, the author examines federal prosecutors' ability to influence criminal justice policy pertaining to the U.S. Bureau of Prisons, clemency, and forensics.

Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer

Faculty Articles

The article presents several charts and graphs on topics include the the black and Hispanic populations of southern and western cities in the U.S. between 1950 and 1980 and the homicide rates in northern, southern, and western cities in the U.S. between 1950 and 1980.

There Is No Santa Claus: The Challenge Of Teaching The Next Generation Of Civil Rights Lawyers In A “Post-Racial” Society, Deborah N. Archer

Faculty Articles

This Essay takes a fresh look at the scholarship on the practice of cross-cultural and client-centered lawyering. The current scholarship explores methods of training law students to be mindful of the ways that cultural differences can impact legal representation. However, this scholarship has not addressed how to equip students to address issues of racial discrimination in light of the post-racial lens through which many view these problems. Legal educators must examine how law students’ beliefs regarding the current relevance of race in America affects their ability to represent clients who believe they are victims of racial discrimination.

Does Humanity-Law Require (Or Imply) A Progressive Theory Of History? (And Other Questions For Martti Koskenniemi), Robert L. Howse, Ruti Teitel

Faculty Articles

In a number of essays over the last decade or so, Martti Koskenniemi has analyzed post-cold war developments in international law, especially the human rights revolution or the emergence of "humanity law" (Teitel, Humanity’s Law). In these works, Koskenniemi asserts a close, if not essential, connection between optimistic or progressive theories of history and liberal, cosmopolitan, post- or anti-statist approaches to international law. We challenge Koskenniemi’s arguments that humanity law is associated with a dogmatically progressive theory of history, that it is oriented toward a world government, that it relies on a version of historical determinism, that it posits a …

Immigration Detention: Information Gaps And Institutional Barriers To Reform, Alina Das

Faculty Articles

This Article examines and critiques the institutional design choices underlying the civil immigration detention system in the United States. The stated objective of this system is to effectuate removal orders and ensure public safety during the removal process by detaining noncitizens who pose a flight risk or danger to the public. The design choices utilized to achieve this objective, however, hinder the effective acquisition and use of information regarding flight risk and danger. Reliance on mandatory detention, evidentiary limitations, and shifting burdens of proof create a presumption of detention. As a result, decision makers lack the means or the incentive …

Japanese Legal Reform In Institutional, Ideological, And Comparative Perspective, Frank K. Upham

Faculty Articles

The article presents an institutional, ideological and comparative perspective regarding Japanese legal reform. It discusses inevitable consequences of legal reform in a democratic country by comparing substantive and procedural justice in the Japanese and American legal systems. It informs that citizen participation in adjudication departs the rule of law ideals of neutrality and objectivity and accepts emotional, social, and political factors for rule of law.

Gideon At Fifty—Golden Anniversary Or Mid-Life Crisis, Kim A. Taylor-Thompson

Faculty Articles

Fifty years ago, Gideon laid an important foundation, but that foundational principle requires new responses to new challenges. There is much work to do to prevent this fiftieth anniversary from collapsing into a mid-life crisis and, instead, enabling this half-century mark to be the golden anniversary it ought to be. Part one of this essay examines the ways in which the states have veered from the path set by Gideon. To breathe life into the Gideon mandate, and to make the sort of course correction that honors the decision’s principles rather than weaken them to caricatures, we, and all who …

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

Faculty Articles

Immigration enforcement is increasingly integrated with local policing. This trend accelerated four years ago when the federal government launched “Secure Communities,” a program designed to check the immigration status of every person arrested by local police. The government views the program as an innovation that enhances the efficacy of crime control and immigration enforcement, while civil rights groups have decried it as an invitation to racial profiling by local police. This paper, part of a larger project providing the first large-scale empirical evaluation of Secure Communities, uses the pattern of the program’s activation to explore a central feature of criminal …

License, Registration, Cheek Swab: Dna Testing And The Divided Court, Erin E. Murphy

Faculty Articles

Midway through the oral argument in Maryland v. King, Justice Alito spontaneously interjected: “[B]y the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades.” The juxtaposition between the breeziness of his comment and the solemnity of its content befit the case, which is best characterized as a sleeper in a Term overshadowed by monumental rulings on gay marriage, voting rights, and affirmative action. What looked on its face like just another Fourth Amendment dispute – with civil libertarians on one side and law enforcement on the other – garnered no …

Panopti-Moms, Melissa Murray

Faculty Articles

The Panopticon’s shadow looms large in Camille Gear Rich’s Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law. There, Rich identifies the role that criminal child molestation statutes play in shaping the way that men provide intimate care to children. Specifically, Rich argues that child molestation laws are enforced and interpreted in ways that reinstantiate the traditional gender norms that surround caregiving. Focusing on criminal cases involving male caregivers who provide intimate care to a child (bathing, diapering, toileting, etc.), Rich demonstrates the way in which legal decision makers (judges, social workers, law enforcement officials) often rely on …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

The Military Justice Conundrum: Justice Or Discipline?, David A. Schlueter

Faculty Articles

This article focuses on the long-standing debate over the purpose and functions of the American military justice system and whether the system is intended to provide for good order and discipline or to provide justice. The author provides a summary of the current procedures and practices in that legal system and discusses the roles of commanders and armed forces attorneys. He addresses the various thematic approaches which have been used to describe the relationship between justice and discipline and applies a crime-control and due process model to various features of the military justice system. He concludes that the system was …

Prison Is Prison, Brooke Coleman

Faculty Articles

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and …

Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts

Faculty Articles

Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror …

Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman

Faculty Articles

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a …