Digital Commons Network^™

The Political Market For Criminal Justice, Rachel E. Barkow

Faculty Articles

Deals with the article "The Market for Criminal Justice," by Doron Teichman. Role of political-economy approach in assessing questions of criminal justice policy; Insights of Teichman on jurisdictional competition; Involvement of the federal government in sentencing; Suggestions of Teichman for criminal law scholars.

Separation Of Powers And The Criminal Law, Rachel E. Barkow

Faculty Articles

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including crime. And because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach when it comes to criminal matters. Indeed, the Supreme Court has been even …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

A number of Federal Rules of Procedure and Evidence are scheduled for amendment on December 1, 2006, unless Congress amends them further or disapproves of the changes. The amendment to Rule 5 would remove a conflict between Rule 58 and Rule 5.1(a) concerning when a defendant is entitled to a preliminary hearing. Rule 6 would undergo purely technical changes making the rule conform to the writing conventions used in the restyling of the Criminal Rules. Rule 32.1 is being amended to permit the government to produce certified copies of the judgment, warrant, or warrant application by “reliable electronic means.” Under …

Hamdi's Habeas Puzzle: Suspension As Authorization?, Trevor W. Morrison

Faculty Articles

Although the executive detention of individuals outside the criminal justice system implicates the historical core of the writ of habeas corpus, there persists in this area a remarkable amount of disagreement over the nature of habeas corpus and its place in our constitutional system. This phenomenon is especially evident in Hamdi v. Rumsfeld, the 2003 Supreme Court case involving a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. Two of those opinions - a plurality by Justice O'Connor and a …

Life In The Early Days Of Lawyer Advertising: Personal Recollections Of A Bates Baby, Gerald S. Reamey

Faculty Articles

The Supreme Court decision in Bates v. State Bar of Arizona ruled that lawyer advertising is commercial speech subject to First Amendment protection. However, a Texas disciplinary statute provided that “a lawyer shall not publicize himself, his partner, or associate…through newspaper or magazine advertisements, radio or television announcements…or other means of commercial publicity.” Despite being clearly unconstitutional, the Texas statute remained law for five years. Finally, responding to Bates in September 1977, the Texas State Bar Board of Directors adopted an official statement which allowed for limited advertising in newspapers, and only to the extent which was provided for by …

Criminal Procedure Rules Pending Public Comment, David A. Schlueter

Faculty Articles

No abstract provided.

Introduction, Clayton P. Gillette, Joyce Tischler

Faculty Articles

Joyce Tischler describes the development of the field of animal law from the first animal law conference to its current recognition as one of today's most important issues. Tischler traces the beginnings of animal law and its development, both parallel to and as part of the animal rights and protection movements. Tischler further explores common dilemmas facing animal lawyers and how these dilemmas, along with their responses, have helped shape animal law as we know it today.

Monroe Freedman's Solution To The Criminal Defense Lawyer's Trilemma Is Wrong As A Matter Of Policy And Constitutional Law, Stephen Gillers

Faculty Articles

Monroe Freedman has argued, most recently in the third edition of Understanding Lawyers’ Ethics, co-authored with Abbe Smith, that criminal defense lawyers have a “trilemma” because the rules of their profession give them potentially contradictory instructions. First, competence requires lawyers to seek all information that can aid a client’s matter. Second, lawyers have a duty of confidentiality that generally forbids them to use a client’s information except for the client’s benefit. Third, lawyers have a duty of candor to the court that may require them to reveal a client’s confidential information in order to prevent or correct fraud on the …

Our Ignorance About Intelligence, Richard A. Epstein

Faculty Articles

In a short introduction, I shall not even attempt to hint at my views on this cluster of issues, which are on most issues very much a work-in-progress. As a committed defender of limited government in the classical liberal tradition, there are many areas of human life in which I would like to keep the government at bay. I see little or no reason for state regulation of employment contracts for example, and I cautiously accept only limited forms of land planning. But neither of those strategies works here, for try as one might, intelligence is a legitimate government function—assuming …

The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine

Faculty Articles

This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …

The Law Is Not The Case: Incorporating Empirical Methods Into The Culture Of Case Analysis, Kay L. Levine

Faculty Articles

While I consider case analysis in the context of cultural defense jurisprudence, this Essay should be regarded as a case study of a more endemic problem in legal scholarship. In tackling such an area, my goal is not to overthrow centuries of legal analysis, but rather to explore how we, as legal scholars, might use social science techniques to more systematically investigate, document, analyze, and predict the state of a particular comer of the legal universe.

The argument proceeds in two parts. Part II considers empirical approaches to the question raised by Lee: how might we ascertain the relationship between …

Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman

Faculty Articles

This article will discuss the scope of services and rationale for the right to a free lawyer in civil matters as is the case in criminal cases. This right is currently provided in the 49 European member countries in the Council of Europe (COE), Australia, Canada, India, New Zealand, Hong Kong, Japan, Zambia, South Africa, and Brazil. Frequent reference will be made to a chart in the appendix, which condenses extensive information about programs in each of these countries. The article’s general conclusion regarding the foreign programs is that the right to a free lawyer in civil matters is a …

The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle

Faculty Articles

Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest. Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which …

Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland

Faculty Articles

This article directs courts to base their application of Miranda on an explicit and contextually sound consideration of the relationships among students, officers and administrators. This article argues that Miranda applies when a state agent questions a student under circumstances in which it would be reasonable for the student to believe that she is the subject of law enforcement authority, regardless of whether a law enforcement officer conducts the questioning. The determination that Miranda applies is not tantamount to a decision that the student was in custody. It is merely a prelude to the custody inquiry. This article does not …

Linguistics As A Knowledge Domain In The Law, Janet Ainsworth

Faculty Articles

This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures and …

Latinos And American Law: Landmark Supreme Court Cases, Steven W. Bender

Faculty Articles

In this review, the author advocates for a work which provides much needed attention to Latinos in the context of American Law. Specifically, the review outlines key elements of Soltero’s work, which highlights Latino Supreme Court cases.

Our Federal System Of Sentencing, Rachel E. Barkow

Faculty Articles

Barkow highlights why trends in federal system of sentencing are problematic and why it is important for Congress to pay close attention to federalism values when considering sentencing policy. Among others, he begins by discussing the appropriately limited nature of federal criminal jurisdiction. Afterwards explains that limited federal jurisdiction over crimes is particularly important because of shortcomings in the politics of sentencing at the federal level as compared to the politics of sentencing at the state level and because of the greater ability of the states to respond to the diverse preferences of local communities.

Federalism And The Politics Of Sentencing, Rachel E. Barkow

Faculty Articles

The politics of sentencing over the past three decades have been one- sided. Voices in favor of tougher sentences dominate the legislative debate at the state and federal levels. Those advocating on behalf of sentencing reform or alternatives to incarceration garner little attention. Although there are various options for improving deliberation in light of this political imbalance, one mechanism appears to be having an impact in many jurisdictions: a focus on the direct costs of incarceration. There is evidence from the states that tight budgets and a corresponding concern with the rising costs of existing incarceration policies have prompted greater …

Private Attorneys General And The First Amendment, Trevor W. Morrison

Faculty Articles

Discusses the distinction under the First Amendment which requires injury in suits brought by private plaintiffs but not in those initiated by the U.S. government, and its implications to private attorneys general. Example of issues and situations addressed by a private attorney general; Details of several policy arguments for and against the private attorney general; Specifics of a court case illustrating the distinction.

Cybersecurity, Identity Theft, And The Limits Of Tort Liability, Vincent R. Johnson

Faculty Articles

Tort law is the best vehicle for allocating the risks and spreading the costs of database intrusion. It can incentivize database possessors (“possessors”) and data subjects to minimize the harm associated with breaches of database security while also balancing each party’s interests. Life is built upon computerized databases and the information of those databases is subject to hackers and other cyber-threats, which can cause catastrophic damage. It is hard to identify hackers; however, a better object for recovery is likely the possessors who fail to prevent or reveal a security breach.

The law governing database possessors’ liability is far from …

Federal Rules Update: Who Makes The Rules?, David A. Schlueter

Faculty Articles

There are a number of amendments to the Federal Rules of Criminal Procedure and Evidence which were approved and would become effective as of December 1, 2005. The amendment to Criminal Rule 12.2 permits the court to exclude evidence on a defendant’s mental condition if the defense failed to submit a mental examination. The amendment to Criminal Rules 29, 33, and 34 all concern the timing of requests for extensions of time. Criminal Rule 45 will be amended to conform with the changes to Rules 29, 33, and 34. The amendment to Criminal Rule 32.1 provides a right of allocution …

The Growing Role Of Fortuity In Texas Criminal Law, Gerald S. Reamey

Faculty Articles

Texas’ recent departure from culpability based crimes now means luck plays a bigger role in the punishment for these crimes. Texas has departed from the traditional notion of punishment based on individual fault, and has arrived at a place where these “new” ways of conceptualizing criminal responsibility adequately and satisfactorily account for the interests served by a more restrictive definition of criminal fault. Traditionally, criminal responsibility attached only when mens rea combined with volitional conduct--or the withholding of some required act--to produce a public harm.

In Texas, there seems to be a trend to punish actors for the harm they …

Notes: Rethinking Retroactivity, Robert J. Jackson Jr.

Faculty Articles

This Note takes up Justice Harlan's admonition that "[r]etroactivity must be rethought."' In Part II, the Note begins by tracing the jurisprudential font of Teague's test for retroactivity - the reasoning of Justice Harlan's opinions in Desist v. United States and Mackey v. United States, which the Teague Court explicitly adopted in articulating the test for retroactive application of procedural rules. The Note argues that Justice Harlan's concerns in Mackey did not include the normative considerations that properly govern the retroactive application of new rules on collateral review. Because Mackey's concern with what is "fundamental" is as analytically unavailing in …

Administering Crime, Rachel E. Barkow

Faculty Articles

Although agencies are the dominant force in criminal law today, existing scholarship has largely failed to analyze how these bodies perform as agencies. We know little about how the institutional design of these agencies affects their output or whether the politics of regulation are different when an agency is responsible for the regulation of criminal justice issues as opposed to traditional regulatory areas. This Article takes up that task by evaluating the agencies charged with regulating one of the most important aspects of criminal law: sentencing. Many reformers turned to agencies to regulate sentencing because they did not trust the …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Faculty Articles

Recent empirical studies by economists have shown, without exception, that capital punishment deters crime. Using large data sets that combine information from all fifty states over many years, the studies show that, on average, an additional execution deters many murders. The studies have received much publicity, and death penalty advocates often cite them to show that capital punishment is sound policy.

Indeed, deterrence is the central basis that many policymakers and courts cite for capital punishment. For example, President Bush believes that capital punishment deters crime and that deterrence is the only valid reason for capital punishment. Likewise, the Supreme …

The New Prosecution, Kay L. Levine

Faculty Articles

This Article proceeds as follows. Part I introduces the Statutory Rape Vertical Prosecution Program that took shape in California in the mid-1990s. In addition to explaining how this program emerged and its central features, I highlight the aspects of the SRVPP that distinguish California statutory rape prosecutors from the traditional image of the local prosecutor in the United States. Part II offers some background on the new prosecution and the problem-oriented approach to criminal justice, explaining how this model differs from the traditional crime-based or case-based method of criminal justice work. In Part III, I use empirical data derived from …

Take The Money Or Run: The Risky Business Of Acting As Both Your Client's Lawyer And Bail Bondsman, Dayla S. Pepi

Faculty Articles

The American Bar Association strongly discourages lawyers from being bondsmen due to the conflicts that can arise when a criminal defense attorney acts as their client's bail bondsman. These same ethical dilemmas can also be encountered in posting a bond for a client in civil matters such as probate, family law, and appeals. In Texas, lawyers are exempt from the requirements of licensure as a bondsmen, including the requirement to maintain a particular level of security to underwrite the bonds. Nonetheless, lawyers are still required to conform to the requirements regulating the practice of bondsmen.

It is not enough for …

The Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino

Faculty Articles

No abstract provided.

In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell

Faculty Articles

This article argues that triaging is necessary for public defenders and is a response to the work of Professor Freedman. Because states lack money in areas of greater community concern, the defense of indigent criminals is neglected and substantial resources are not likely to be forthcoming. The author previously set out a solution of triaging, which can be conducted either haphazardly or according to some set of rational principles based on ethical theory. The author concurs with Professor Freedman to the extent that the United States Supreme Court in Strickland v. Washington effectively ensures that Sixth Amendment Constitutional guarantees will …

Justice Tom C. Clark’S Legacy In The Field Of Legal Ethics, Vincent R. Johnson

Faculty Articles

Justice Tom C. Clark served as this nation’s Attorney General and as a Supreme Court Justice during a pivotal time in this nation’s history; however, his greatest legacy is the tremendous impact he and the Clark Report, whose development he oversaw, has in the area of lawyer discipline and ethics. Prior to the Clark Report, there existed a “scandalous situation” with respect to lawyer discipline; however, in the subsequent decades, revolutionary change has occurred. That change is largely attributable to Justice Clark, whether directly or indirectly, as was found in 1992 by the American Bar Association in its McKay Report. …