Digital Commons Network^™

Transforming Domestic Violence Representation, Jane Stoever

Faculty Articles

The dominant theories used in the law to explain domestic violence, namely, the Power and Control Wheel and the Cycle of Violence, provide only limited insight into intimate partner abuse. Both theories focus exclusively on the abusive partner' wrongful actions, consistent with recent decades' concentration on criminalization, but fail to educate about the survivor's needs and efforts to end violence. The Stages of Change Model, conversely, reveals that domestic abuse survivors seek an end to relationship violence through a five-stage cyclical sequence and identifies the survivor's needs and actions at each stage. This critical information should inform the representation of …

Promoting Language Access In The Legal Academy, Gillian Dutton, Beth Lyon, Jayesh Rathod, Deborah Weissman

Faculty Articles

Since the 1960s, the United States government has paid increasing attention to the rights of language minorities and to the need for greater civic and political integration of these groups. With the passage of the Civil Rights Act of 1964, the issuance of Executive Orders, and intervention by the federal judiciary, progress has been made in the realm of language access. State and local courts have likewise taken steps (albeit imperfectly) to provide interpretation and translation assistance to Limited English Proficient persons. Most recently, responding to both lack of services and inconsistent practices, the American Bar Association has set out …

Drug Panics In The Twenty-First Century: Ecstasy, Prescription Drugs, And The Reframing Of The War On Drugs, Deborah Ahrens

Faculty Articles

The Supreme Court has failed to clarify this important procedural exception to the clear error standard. More than this, the Court has failed to explain why it refuses to apply independent judgment to all constitutional facts. The results of the differential treatment of these two legal concepts are: 1) Rule 52, and the Supreme Court’s approach to its constitutional fact exception is another type of denial of structural due process, preventing the legal norming of intentional discrimination jurisprudence; 2) institutional interests of doctrinal coherence and decisional accuracy are minimized in favor of reducing direct costs to the judicial system; 3) …

Remodeling The Multi-Door Courthouse To "Fit The Forum To The Folks": How Screening And Preparation Will Enhance Adr, Tim Hedeen

Faculty Articles

The article offers information on remodeling of multi-door courthouse to enhance Alternative Dispute Resolution (ADR) efficiency. It informs that symposium, The Future of Court ADR: Mediation and Beyond that was held in September 2011 featured scholars and practitioners to discuss the past and future of ADR. It informs that research and practice in mediation have deepened the understanding in engaging with prospective clients.

Cyber Security And The Government/ Private Sector Connection, Jeffrey F. Addicott

Faculty Articles

The United States does not possess a sufficient cyber security framework. Over eighty-five percent of the critical infrastructure in the United States is controlled by private industry. The greatest concern is an intentional cyber attack against electronic control systems that regulate thousands of interconnected computers, routers, and switches. The centralized computer networks controlling the U.S. infrastructure presents tempting targets.

Generally, there are four types of cyber attacks. First, the most common, is service disruption—which aims to flood the target computer with data packets or connection requests, thereby making it unavailable to the user. The second type is designed to capture …

Citizen Participation In Japanese Criminal Trials: Reimagining The Right To Trial By Jury In The United States, Jon J. Lee

Faculty Articles

If the United States were to reform contemporary jury trials to match the Founders’ conception of the right to trial by jury, how might they look? In recent years, we have gained insight into how to answer that question from an unlikely source: Japan. This Article examines the introduction of citizen participation into the Japanese judicial system (the saiban-in seido) from a different perspective. Rather than focusing on the contemporary American jury system, this Article evaluates the Japanese reforms in light of the Founders’ conception of the right to trial by jury. It is this conception of the right to …

A Tale Of Two Sciences, Erin E. Murphy

Faculty Articles

It was the best of times, it was the worst of times ... .' So might one describe the contrasting portraits of DNA's ascension in the criminal justice system that are drawn in David Kaye's The Double Helix and the Law of Evidence and Sheldon Krimsky and Tania Simoncelli's Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. For Kaye, the double helix stands as the icon of twenty-first-century achievement, a science menaced primarily by the dolts (lawyers, judges, and the occasional analyst) who misuse it. For Krimsky and Simoncelli, DNA is a seductive forensic tool that is prone …

Business Crime And The Public Interest: Lawyers, Legislators, And The Administrative State, Harry First

Faculty Articles

In this Article, I explore some of the unique connections between business crime and the public interest. I begin with providing some definition for the types of crimes I am discussing. Next, I discuss some examples of the particular challenges facing prosecutors, defense counsel, and legislators in this area. I conclude with some observations on achieving the public good in business crime in the administrative state.

Sentencing Guidelines At The Crossroads Of Politics And Expertise, Rachel E. Barkow

Faculty Articles

When Minnesota created the first sentencing commission in 1978 and the first sentencing guidelines in 1980, it was hard to predict where the guidelines movement would go. More than three decades and twenty sentencing guideline regimes later, it is still not easy to foresee what will become of sentencing commissions and guidelines. The past decade alone has witnessed tremendous changes in sentencing law and policy that were hard to imagine even just a few years before they occurred. The Supreme Court’s landmark sentencing decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker, the reform of …

Reinventing The Wheel: Constructing Ethical Approaches To State Indigent Legal Defense Systems, Bill Piatt

Faculty Articles

Indigent defense remains in a state of crisis. Almost fifty years after the Supreme Court's landmark decision in Gideon v. Wainwright, lack of funding, favoritism, inefficiency, and poorly-designed indigent-defense plans plague the system, which can best be characterized as being in a state of disrepair. As a result, accused indigent individuals, a vulnerable population, suffer from a lack of adequate representation. This Article reviews the history and implementation of various indigent-defense systems and examines the ethical issues arising from their operation. It offers a guide to reconstructing a model system, including the suggestion that attorneys first recommit the profession to …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

J.D.B. And The Maturing Of Juvenile Confession Suppression Law, Martin Guggenheim, Randy A. Hertz

Faculty Articles

The article offers information on the development in the juvenile confession suppression law and also examines the doctrine used by the U.S. court to deal with the court case J.D.B. v. North Carolina. It discusses the aspects of juvenile rights in criminal and delinquency proceedings. It further discusses the legislative facts in the J.D.B. decision and also presents information on the changes demanded by J.D.B. in the dealing criteria of criminal and juvenile justice systems.

Graham V. Florida And A Juvenile’S Right To Age-Appropriate Sentencing, Martin Guggenheim

Faculty Articles

The Solicited Content portion of this issue is devoted to exploring the future of juvenile justice. In the landmark 2010 decision Graham v. Florida, the Supreme Court held that sentencing juveniles to life in prison without the possibility of parole for crimes other than homicide is categorically forbidden as a violation of the Eighth Amendment. But, I predict, Graham will eventually come to stand for considerably more. It is the most significant juvenile justice case advancing children’s rights since the landmark In re Gault decision in 1967. In an unprecedented way, Graham paves the way toward a new jurisprudence based …

Implicit Bias In The Courtroom, Jerry Kang, Mark Bennett, Devon W. Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson, Jennifer Mnookin

Faculty Articles

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story …

Rights And Votes, Daryl J. Levinson

Faculty Articles

This Article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). The Article starts from the simple idea that the interests of vulnerable groups in collective decisionmaking processes can be protected either by disallowing certain outcomes that would threaten those interests (using rights) or by enhancing the power of these groups within the decisionmaking process to enable them to protect their own interests (using votes). Recognizing that rights and votes can be functional substitutes …

Back To The Future: The Curious Case Of United States V. Jones, Erin E. Murphy

Faculty Articles

Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does? In Jones, the Justices were confronted with just this dilemma. In response, as this Essay will …

Hungdah Chiu, China, And International Law: A Life Well Spent, Jerome A. Cohen

Faculty Articles

Chinese and Americans share many things. One of the things we share is a belief in turning a vice into a virtue. This program does that. We have come here to pay a sad tribute to the late Professor Chiu Hungdah, yet, we will benefit from the impressive program that has been organized to celebrate Professor Chiu's memory. My informal introduction to the program can be divided into three parts. First, I will talk about Professor Chiu, whom I knew very well early in his career and whose subsequent achievements I continue to admire. Second, I will discuss the changes …

Regulation For The Sake Of Appearance, Adam M. Samaha

Faculty Articles

Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …

Prosecution In 3-D, Kay L. Levine, Ronald F. Wright

Faculty Articles

Despite the multidimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutors’ case-handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience.

In this Article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps …

Race, Brain Science, And Critical Decision-Making In The Context Of Constitutional Criminal Procedure, Christian M. Halliburton

Faculty Articles

This article surveys current and emerging neuroscience research that is uncovering deep cognitive-level and unconscious connections between race or racial constructs, perception, and decision making. Using those findings as a platform for consideration, the article addresses several implications that these cognitive patterns might have for the particular kinds of perceptual experiences and decision making opportunities that are relevant in the context of criminal law enforcement and police procedure, and begins to evaluate the influence that these cognitive trends may have on the development of specific legal regulatory mechanisms and their application to the larger law enforcement complex.

When Coercion Lacks Care: Competency To Make Medical Treatment Decisions And Parens Patriae Civil Commitments, Dora W. Klein

Faculty Articles

The subject of this Article is people who have been civilly committed under a state’s parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This …

Preliminary Report On Race And Washington’S Criminal Justice System, Robert S. Chang

Faculty Articles

For this Report, the Research Working Group reviewed evidence on disproportionality in Washington’s criminal justice system and considered whether crime commission rates accounted for this disproportionality. They found that crime commission rates by race and ethnicity are largely unknown and perhaps unknowable, but that some researchers simply take arrest rates as good proxies for underlying commission rates for all crimes. They found that use of arrest rates likely overstates black crime commission rates for several reasons. But even if arrest rates are used as a proxy for underlying crime commission rates, the extent of racial disproportionality is not explained by …

Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman

Faculty Articles

Every year in Professor Brooke Coleman’s 1L Civil Procedure course, she introduces the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. However, every year when Professor Coleman teaches it, she finds herself rejecting the case and its approach even more. In short, …

Crimes Of Misery And Theories Of Punishment, John B. Mitchell

Faculty Articles

Increasingly, one sees the homeless on the streets, alleys, and doorways of commercial, recreational, and living spaces of our cities otherwise populated by the affluent and relatively affluent. At the same time, there has been an increase in the creation and use of so-called “public order laws,” such as forbidding sitting on sidewalks, lying down on benches, and panhandling in certain tourist areas. Together with laws already on the books forbidding public intoxication, open containers of liquor in public and urinating in public, this suite of laws provide police with a means to control the day-to-day lives of the homeless …

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Articles

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test ("IAT"), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The …

Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts

Faculty Articles

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …

Rule 3.8, The Jencks Act, And How The Aba Created A Conflict Between Ethics And The Law On Prosecutorial Disclosure, Kirsten Schimpff

Faculty Articles

No abstract provided.

The Inquisitorial Advantage In Removal Proceedings, Won Kidane

Faculty Articles

This article takes a radically different and unique approach to improving due process in removal/deportation proceedings. It argues that the existing adversarial system of adjudication, which is incontrovertibly inefficient, expensive and unfair, is a product of cultural imaginary. It demonstrates that if the current adversarial model is measured by contemporary utilitarian standards, it is utterly counterproductive. The article then recommends the adoption of the inquisitorial model of the civilian system by converting the majority of the 951 government lawyers, who now serve as the non-citizens’ adversaries, into administrative law judges. Through a comparative analysis of the common law and civil …

Constructions Of Citizenship Among Multinational Corporations, Gail L. Markle

Faculty Articles

Using social contract theory as a foundation I examined the ways in which four multinational corporations use disclosures of corporate social responsibility to present themselves as good corporate citizens. Several factors influence a corporation’s use of CSR: size of the corporation, public visibility, personal commitment of high ranking executives, location of manufacturing operations, and types of stakeholders. There is a significant difference in the responsibilities and obligations Proctor & Gamble, Kimberly-Clark, and Colgate-Palmolive ascribe to themselves as corporate citizens compared to those of SC Johnson. I attribute this difference to one of stakeholder accountability, specifically public shareholders. The three publicly …

Pop Culture, Politics, And America's Favorite Animated Family: Partisan Bias In The Simpsons?, Kenneth Michael White, Mirya Holman

Faculty Articles

An essay is presented on the impact of the political content of the television program "The Simpsons" on the politics, pop culture and viewers in the U.S. It offers an overview of the creation of the show and explores the different aspects of the show, particularly the debate over its so-called partisan bias. It also discusses the criticism from Republicans including former President George H. W. Bush that the show favors the left.