Digital Commons Network^™

Organizational Guidelines For The Prosecutor's Office, Rachel E. Barkow

Faculty Articles

The article discusses organizational guidelines for the office of the prosecutor. It argues that it is time for the prosecutors to recognize that their own offices should be held to the same standards as other organizations. It describes the pressures that lead to the prosecutorial misconduct and the lack of any effective checks on this behavior. It outlines the parallels between prosecutorial misconduct and the misconduct of corporate employees, and describes how prosecutors have addressed organizational misconduct in the corporate context. It explains how the corporate compliance model could be practically applied to prosecutors' offices.

Relative Doubt: Familial Searches Of Dna Databases, Erin E. Murphy

Faculty Articles

The continued growth of forensic DNA databases has brought about greater interest in a search method known as 'familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …

Legislatures, Judges, And Parole Boards: The Allocations Of Discretion Under Determinate Sentencing, Dhammika Dharmapala, Nuno Garoupa, Joanna Shepherd

Faculty Articles

The most significant development in criminal sentencing in recent decades has been the shift from indeterminate to determinate sentencing. Yet no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges’ and parole boards’ discretion over criminal sentencing. First, we develop a political economy model that explains why legislatures acting in their own self-interest may be motivated to enact these laws. Our model predicts that legislatures are more likely to enact determinate sentencing reforms when there is tension among the …

How Not To Lie With Judicial Votes: Misconceptions, Measurement, And Models, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

In Part I, we describe the formal spatial theory often invoked to justify the statistical approach. While spatial theory has the nice feature of synthesizing theory and empirics, legal scholars may remain skeptical of its strong assumptions. Fortunately, measurement models can be illuminating even if the spatial theory is questionable.

To illustrate this, Part II provides a nontechnical overview of the intuition behind measurement models that take merits votes as an input and return a summary score of Justice-specific behavior as an output. Such scores provide clear and intuitive descriptive summaries of differences in judicial voting.

Confusion abounds, however, and …

How The Peace Was Lost: Ignoring The Presidential Oath In 1964 And 2002-2003, Kenneth M. White

Faculty Articles

On February 16, 2001, while George W. Bush, President of the United States (U.S.), attended a news conference in Mexico hosted by Vicente Fox, President of Mexico, a distinct difference between the two men became apparent when reporters asked questions about Iraq. President Fox hesitated to make a declaration regarding Iraq saying: “this is not the meeting in which decisions or details are going to be reached, because they do not belong in the power of—the executive power, as such, because they have to have the participation of other groups.” When another reporter asked about the then recent bombing of …

Rehabilitating Mental Disorder Evidence After Clark C. Arizona: Of Burdens, Presumptions, And The Rights To Raise Reasonable Doubt, Dora W. Klein

Faculty Articles

The right not to be found guilty of a crime absent proof beyond a reasonable doubt is a powerful right. It can be undermined, however, by rules that at first seem to have little to do with reasonable doubt or with burdens of proof.

In the recent case of Clark v. Arizona, the Supreme Court considered whether states may enact rules that categorically prohibit criminal defendants from offering mental disorder evidence for the purpose of raising reasonable doubt regarding the mens rea element of a charged offense. In Arizona law, mental disorder evidence is inadmissible for the purpose of disproving …

Innovation Or Renovation In Criminal Procedure: Is The World Moving Toward A New Model Of Adjudication?, Gerald S. Reamey

Faculty Articles

A universal system of criminal procedure offers the allure of efficiency, predictability, and enhanced crime control. For the first time in modern history, universality seems achievable. The criminal procedures employed by the world’s major legal systems are converging. What was once distinctively “civil” or “common law” is now a blend of the two. The adversarial adjudicative approach of most common law countries now can be found in the most unlikely places, and civil law characteristics adorn the processes of some of the world’s most aggressively adversarial systems.

While this movement has not gone unnoticed, the pace of change has accelerated, …

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Nicol Bowman

Faculty Articles

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Rodrigo's Portent: California And The Coming Neocolonial Order, Richard Delgado

Faculty Articles

No abstract provided.

Lawyering And Learning In Problem-Solving Courts, Paul Holland

Faculty Articles

The introduction of Drug Courts and other problem-solving courts has brought significant change to the American criminal justice system. This change has required lawyers working in these courts to re-examine their role and to re-consider and re-calibrate the nature of their interactions and relationships with their clients and all of the other actors in the system. This article looks beyond the rhetorically charged debate that has marked these changes and offers instead a close examination of the actual experience of lawyers, judges, and most importantly, defendant-participants, in these courts. This examination demonstrates that many of the traditional values embedded in …

The Status Of Private Military Contractors Under International Humanitarian Law, Won Kidane

Faculty Articles

One of the serious problems that the new administration faces is undoubtedly the regulation and use of private military contractors in "the war on terror." The private military industry is largely unregulated at the national level. Its status under international law is also poorly understood. This article assesses the legal status of this industry, characterizes the various functions, demonstrates the difficulty of regulating the industry as a unitary entity, and identifies the appropriate set of international standards that the new administration and Congress as well as the larger international legal community could employ in evaluating regulatory options.

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Faculty Articles

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

Institutional Design And The Policing Of Prosecutors: Lessons From Administrative Law, Rachel E. Barkow

Faculty Articles

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are …

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang Ngov

Faculty Articles

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

Judge Wayne Justice: A Life Of Human Dignity And Refractory Mules, Albert H. Kauffman

Faculty Articles

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

The Middle Ground In Judicial Review Of Enemy Combatant Detentions, Trevor W. Morrison

Faculty Articles

In periods of heightened national security concern, it is perhaps inevitable that the judiciary will be called upon to balance the government's asserted need for extraordinary powers against the rights of the individual. This is not an easy balance to strike, especially when the national security concern rises to the level of an actual military conflict and when the issue at hand is as difficult as the detention of alleged enemy combatants outside the ordinary criminal justice system. Nor is it a balance about which the Supreme Court has made many definitive statements. Indeed, as the Supreme Court observed at …

Texas Polygamy And Child Welfare, Martin Guggenheim

Faculty Articles

This article explains why the child welfare process was used in the 2008 San Angelo, Texas raid on the FLDS community which resulted in the removal of more than 400 children from their families. It argues that the criminal justice system, not the child welfare system, should be the preferred means by which state officials attempt to prevent the practice of polygamy. The criminal justice system contains many more time honored protections of civil liberties than the child welfare system. In addition, using the child welfare system contains one additional danger: the contamination and expansion of child welfare law to …

Federal Rules Update: Technology-Related Rules, David A. Schlueter

Faculty Articles

In June 2009, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number of technology-related rules of criminal procedure. Criminal Rule 1 would state that the terms “telephone,” “telephonic,” or “telephonically” mean any form or live electronic voice communication. Rule 3 would allow officers to submit a complaint and supporting material electronically. Changes to Rule 4 would address electronically processed and submitted arrest warrants. Proposed new Rule 4.1 would permit magistrate judges to consider information presented electronically in deciding whether to issue a warrant or summons or approve a complaint. The amendment …

Federal Rules Update: Amendments To The Federal Rules Of Procedure And Evidence, David A. Schlueter

Faculty Articles

In a very unusual step, Congress enacted Federal Rule of Evidence 502. This rule deals with the attorney-client and work product privileges. The proposal for this rule was driven primarily by the concern over rising litigation costs associated with discovery, especially electronic discovery. Experience had demonstrated that in complex litigation cases lawyers spend considerable time and effort to preserve privileged documents. If a privileged document is mistakenly produced, there is a risk that a court would find subject matter waiver, not only in the case at bar, but in other cases as well.

The new rule became effective on September …

The Case Against The Case For The Third-Party Doctrine: A Response To Epstein And Kerr, Erin E. Murphy

Faculty Articles

I will start by posing the two major questions at stake: should there be any third-party protection at all, and if so, what should it look like? Since Professor Epstein focused most of his attention on the latter point, I will spend my time more on the former. To answer that general question, I intend to proceed in the following four steps. First, having agreed with Professor Epstein's critiques of Professor Kerr's technological neutrality and ex ante clarity rationales for scrapping third party protection, I will add two critiques of my own. Second, in the spirit of reconciliation, I will …

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

Faculty Articles

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 …

Money, Politics, And Impartial Justice, Joanna Shepherd

Faculty Articles

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States’ judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, …

When Gender Meets Sex: An Exploratory Study Of Women Who Seduce Adolescent Boys, Kay L. Levine

Faculty Articles

This article describes the origins, design, and implications of a new study exploring female-perpetrated statutory rape against ado­lescent boys in the United States. In contrast to both legal frame­works, which typically regard statutory rape as a male-on-female phenomenon, and existing literature from the fields of psychology and psychiatry derived from clinical samples and sex offender reg­istries, this study examines the incidence of female-perpetrated stat­utory rape using data from electronic news reports covering the period 1990-2008. In this short article, the author explains the ad­vantages of her approach over those taken by prior scholars, in terms of the size of the …

Sharing Stories: Narrative Lawyering In Bench Trials, Paul Holland

Faculty Articles

Narrative lawyering theorists have demonstrated the ways in which the dynamics of stories affect the way lawyers deliver and jurors receive messages within trial. However, relatively little attention has been paid to the distinctive ways in which stories are developed in bench trials. Examining three roughly contemporaneous bench trials, this Article illuminates how this trial format requires lawyers to be both performers and audience, alternating roles frequently, sometimes within the span of a breath or a gesture. The availability of feedback to the lawyer and the possibility of direct intervention by the fact-finder produce a stark contrast to what lawyers …

Calling Your Bluff: How Prosecutors And Defense Attorneys Adapt Pleas Bargaining Strategies To Increased Formalization, Deirdre Bowen

Faculty Articles

This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty-two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases do not fit the "normal crimes" model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys …

Trans Law Reform Strategies, Co-Optation, And The Potential For Transformative Change, Dean Spade

Faculty Articles

This paper considers two critiques of how law and rights struggles co-opt social movements and applies them to the example of the emergent law reforms in the area of transgender rights. First, it considers the limitations of the discrimination principle. Second, it looks at the emergent critique of "nonprofitization." Examining how the focus on formal legal equality and the growth of non-profit formations that centralize the concerns and experiences of white and upper class people have impacted gay and lesbian rights work, the paper suggests that these avenues present dangers to creating meaningful transformation of conditions facing trans population, including …

Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane Stoever

Faculty Articles

HIV/AIDS dramatically impacts domestic violence survivors' needs and demands reconceptualization of current responses to domestic violence. This article aims to illuminate the problem of domestic violence in the context of HIV/AIDS and to prompt further development of legal response systems. Specifically, this article brings together the worlds of law, public health, and women's lived experiences to argue for recognizing and responding to domestic violence in the context of HIV/AIDS in the United States. Utilizing accounts of clients' experiences and data from public health studies, this article sets forth eight categories of HIV/AIDS-related domestic violence: repercussions from partner notification, use of …

Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino

Faculty Articles

Clinicians and scientists use functional magnetic resonance imaging (fMRI) to map sensory, motor, and cognitive function and to study the neural correlates of a range of physical and mental conditions, behaviors, characteristics, and preferences. Due to its move outside the clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being examined within the overlapping fields of neuroethics and neurolaw. The early neuroethics and neurolaw scholarship focused heavily on the implications of fMRI for evidence law, criminal law, criminal procedure, and constitutional law. Little attention has been paid, however, to the implications of advances …

How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton

Faculty Articles

This article seeks for the very first time to inform that debate with a notion of property as an essential aspect of human identity in a "mash-up of sorts that might be called Fourth Amendment jurisprudence meets the Radinesque Property of Personhood. Using an expanded version of the notion of property developed by Professor Margaret Radin in her pioneering work Property and Personhood, the Fourth Amendment must contend with the social reality that some aspects of "ownership" or entitlement to property, and some level of vindication of those interests, are essential to the formation and viability of complete human beings. …

Asking Jurors To Do The Impossible: A Response To Peter Tiersma, Janet Ainsworth

Faculty Articles

Comments from Janet Ainsworth at the Summers-Wyatt Symposium - Asking Jurors to Do the Impossible - Friday March 27, 2009 Transcript.