Digital Commons Network^™

When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel

Faculty Articles

The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in …

Leveling The Playing Field: A New Theory Of Exclusion For A Post-Patriot Act America, Christian Halliburton

Faculty Articles

This article takes the position that, although the PATRIOT Act is superficially unrelated to the specifics of the exclusionary rule, such a drastic departure from constitutional norms would not have been possible had the Court not conditioned the Fourth Amendment exclusionary rule's operation on pursuit of the inherently unstable target of institutional deterrence. Part I of this article will trace the development of the Fourth Amendment's exclusionary rule from its origins in federal court through its incorporation against the states, paying particular attention to the underlying purpose of the exclusionary rule as announced by the Court, and concluding with a …

Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey

Faculty Articles

This paper reevaluates Frankfurt School theory, and other cultural critiques, in an effort to bring a more sophisticated analysis to bear on popular culture depictions of law. It invokes the cultural critiques of the Birmingham School in order to assess the more subtle ideological content more often found in film. The focus is not only on how popular culture functions as a mechanism for communicating and reproducing ideologies, but also what this function is based on, a theoretical analysis that asks what images of law and legal justice one might expect to see in popular media. The article also assesses …

Toward Reconciliation In The Middle East: A Framework For Christian-Muslim Dialogue Using Natural Law Tradition, Russell Powell

Faculty Articles

In this paper, Professor Powell argues that the thinking of Bernard Lonergan in light of the natural law insights of St. Thomas Aquinas, Ali Ezzati and Abdullahi Ahmed An-Na'im provides a framework for Christian-Muslim dialogue. Lonergan's transcendental method moves from the individual subject to universal insights rather than presuming to deduce universals a priori, without regard for history, culture and individual experience. Professor Powell asserts that the most fruitful starting place for meaningful dialogue is to address questions of human rights and social justice using natural law theory, rather than focusing on theological concerns. If Muslims and Christians mutually acknowledge …

Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse

Faculty Articles

This paper attempts to trace the links between the Lawrence v. Texas decision and campaigns for gay marriage rights in order to envision movements that seek justice for more than just the most racially and economically privileged lesbians and gay men. The authors outline the limits of the agenda represented by Lawrence and propose alternative modes for resisting the coercive regulation of sexuality, gender, and family formations.

The Documentary History Of The Supreme Court Of The United States. 1789-1800. Vol. 7, Cases: 1796-1797, George Van Cleve

Faculty Articles

In this review, the author expresses praise for DHSC 7, a document that covers court cases from 1796 to 1797. It highlights various particular cases while noting how effectively they are examined. Ultimately, the review advocates that students of legal history should consider the DHSC 7.

Illusions Of Liberty And Equality: An "Alien's" View Of Tiered Scrutiny, Ad Hoc Balancing, Governmental Power, And Judicial Imperialism, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph Thai

Faculty Articles

Torture as a past and present tool of interrogation in Iraq threatens to undermine the country's struggle towards democracy. In confronting the substantial task of reforming interrogation practices and their public perception, Iraqis may draw valuable lessons from the United States' experience with the constitutional regulation of the admissibility of confessions in criminal cases. After reviewing the constitutional bases relied on by the U.S. Supreme Court to exclude confessions, this Article argues that writing Miranda-like rules into the Iraqi constitution would go far in alleviating the especially coercive environment of custodial interrogation in Iraq and restoring public confidence in the …

Race To The Top Of The Corporate Ladder: What Minorities Do When They Get There, Devon W. Carbado, Mitu Gulati

Faculty Articles

Racing to the top of the corporate hierarchy is difficult, no matter how qualified or capable the candidate. Producing more widgets than one's competitors is not enough. Negotiating the political landscape of the institution is also required. More specifically, individual corporate officers have to be appeased, powerful interest groups have to be co-opted and made allies, and competitors have to be undermined or eliminated. The more bureaucratic the organization and the more opaque the promotion process, the more important this institutional game to climbing the corporate ladder. This Article identifies the kind of racial minorities or racial types who are …

Law And Bioterrorism By Victoria Sutton (Book Review), Jeffrey F. Addicott

Faculty Articles

The best primer for constructing a legal framework surrounding bioterrorism is a wonderfully researched and incisive book by Professor Victoria Sutton. Sutton brings a vast background of experience and expertise to her book, titled Law and Bioterrorism, which is in fact the first legal textbook in the field of law and bioterrorism.

The book begins with a brief examination of the history of law and bioterrorism, from ancient biological warfare to modern times. Drawing upon the lessons of this history, Sutton discusses historical events such as the use of anthrax in World War I, and further examines the rapidly growing …

Navigating The Hidden Obstacles To Ex-Offender Reentry, Anthony C. Thompson

Faculty Articles

As federal and state correctional institutions steadily release record numbers of ex-offenders each year, the communities into which prisoners are released are unprepared to sustain the economic and social burden of the massive reentry movement. As a result, reentering ex-offenders lack the support needed to reintegrate themselves into society and to lead productive, law-abiding lives. This Article first explores political trends that account for the increase in incarceration rates over the last two decades and the resulting social, legal, and economic challenges of reentry both ex-offenders and their communities face. Only recently has the government begun to respond to these …

"The House Was Quiet And The World Was Calm The Reader Became The Book" Reading The Bill Of Rights As A Poem: An Essay In Honor Of The Fiftieth Anniversary Of Brown V Board Of Education, Burt Neuborne

Faculty Articles

The article argues that the Bill of Rights displays a coherent structure similar to the structure underlying a great poem. The vertical structure begins with the articulation in the 1st Amendment of the Founders’ ideal polity, continues in the 2nd and 3rd Amendments with protection of the ideal polity against military overthrow, moves in the 4th through 8th Amendments to protection against civilian attacks on the polity by chronologically summarizing the criminal justice process, and providing protections against its abuse in the 4th (investigation and arrest), 5th (interrogation); 6th (charging and adjudication); and 8th (punishment), and closes in the 9th …

Evidentiary Tactics: Selecting The “Best” Evidence To Simplify The Case, Edward J. Imwinkelried, David A. Schlueter

Faculty Articles

In the early 1990s, the American Bar Association Special Committee on Jury Comprehension released the results of surveys of jurors. These jurors had participated in complex federal and state cases. The researchers asked the jurors what complaints they had against the attorneys who had tried the cases. By a wide margin, the primary complaint was that the litigators went overboard and swamped the jury with information, particularly an excessive number of exhibits.

At trial, the attorney must exorcise the demons of complexity and confusion. There are strategies and tactics that should be employed to reduce cases to manageable portions that …

Rise Of The Machines: Justice Information Systems And The Question Of Public Access To Court Records Over The Internet, Gregory Silverman

Faculty Articles

Professor Silverman discusses the machines that have been taking up positions in the court houses for more than a quarter of a century. These machines are becoming an integrated network integral to the workings of the court. With the assistance of the machines, the myriad and diverse members of the justice and public safety communities together with the public will evolve into a single complex whole that could dedicate itself to creating a more humane and just society comprised of better informed individuals to whom they are genuinely accountable. There are those who fear the machines, afraid that personal privacy …

Business As Usual? Brown And The Continuing Conundrum Of Race In America, Robert S. Chang, Jerome M. Culp Jr.

Faculty Articles

In this article, Professors Robert Chang and Jerome Culp examine the state of race in America in the aftermath of the landmark Supreme Court decision of Brown v. Board of Education, focusing on the ten-year window preceding its fiftieth anniversary. Their findings reveal that while Brown established fundamental precedent in the area of race relations, racial inequality remains entrenched in a number of modern social institutions. Chang and Culp analyze this dilemma by focusing on three distinct trends. First, a cycle of inequality is driven by racial disparities in wealth and perpetuated by interlocking systems of education, housing, family, healthcare, …

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants, Donna F. Coltharp

Faculty Articles

No abstract provided.

Determining The Retroactive Effect Of Laws Altering The Consequences Of Criminal Convictions, Nancy Morawetz

Faculty Articles

This Article traces the roots of the current emphasis on plea agreements to confusion about indicia of retroactivity in cases involving quasi-economic transactions and those involving laws that are targeted at wrongful conduct. Although economic transactions are properly evaluated in terms of standards such as reliance, reliance has no proper application with respect to laws that govern wrongful conduct. Instead, when wrongful conduct is at issue, the proper question is whether the person had fair notice of the degree of consequences.

Wading Into Professor Schneider’S "Murky Middle Ground" Between Acceptance And Rejection Of Criminal Justice Responses To Domestic Violence, Holly Maguigan

Faculty Articles

In Engaging with the State, a chapter in the remarkable history, analysis, and vision that is her book Battered Women & Feminist Lawmaking, Professor Elizabeth M. Schneider writes, " [w]ith both mandatory arrest legislation and VAWA [the Violence Against Women Act of 1994], familiar tensions are replicated- public and private, victimization and agency- which reemerge in the process of enforcement and raise questions concerning the potential utility and effectiveness of these statutes." She challenges the reader to "understand the roles of the state, other institutions, law, and culture in encouraging, legitimizing, and perpetuating violence" and "to critically examine the murky …

(Racial) Profiles In Courage, Or Can We Be Heroes, Too?, Robert S. Chang

Faculty Articles

This article begins with the controversy over a proposed monument based on a widely disseminated photograph of three firefighters raising the American flag over the ruins of the World Trade Center. The three firefighters were White. The proposed monument would have had one White firefighter, one Black, and one Hispanic. This article argues that the controversy over the proposed monument serves as a microcosm for the larger and more important struggle over racial and gender diversity within fire departments, generally.

“If Elected, I Promise [_____]”—What Should Judicial Candidates Be Allowed To Say?, Stephen Gillers

Faculty Articles

In this short Article, I will propose a rule for judicial candidates that balances several competing interests. The rule seeks to honor their First Amendment rights and the voters’ need for information while avoiding a level of specificity that may signal how a judicial candidate would decide a particular case. Along the way, I consider rules that would permit less judicial speech and eventually reject these in favor of a more permissive rule.

It Takes A Community To Prosecute, Anthony C. Thompson

Faculty Articles

Serious treatment of the concept of community prosecution would seem to require deeper thinking about the goals, values, and optimal methods of a community-oriented approach than is currently apparent. This Article will attempt to explore some of these issues, using the programs that have already been developed as a basis for identifying approaches likely to prove successful as well as the pitfalls that such programs may encounter. Part I of the Article lays the foundation for this inquiry by reviewing those core elements of the traditional approach to prosecution that are most germane to a discussion of an alternative community-based …

Federal Courts, Magistrate Judges, And The Pro Se Plaintiff, Lois Bloom, Helen Hershkoff

Faculty Articles

The literature on access to justice generally uses the term "legal assistance" to mean the provision of counsel, whether subsidized by the government or compensated by contingency fee or other arrangement, to a party who cannot afford representation. Access to justice, however, should also entail other forms of legal assistance, including a court structure that responds fairly and efficiently to claimants who lack the legal equipage needed to present their cases in an effective way. In this Article, we describe various institutional adaptations made by one federal district court in response to the increasing number of claims filed by pro …

Courting Disorder: Some Thoughts On Community Courts, Anthony C. Thompson

Faculty Articles

This Essay will use empirical and anecdotal data as well as existing literature on community courts to evaluate the effectiveness of these courts in achieving their stated objectives. In so doing, this Essay does not purport to evaluate all types of community courts. Nor will it attempt to provide an in-depth analysis of all the issues that surround the history, establishment, design, and operation of community courts. Rather, this Essay will identify certain representative problems that inevitably occur in these courts and will examine the extent to which the conflicts inherent in their operation prevent these courts from achieving their …

Minor Rights: The Adolescent Abortion Cases, Martin Guggenheim

Faculty Articles

This article focuses on two Supreme Court decisions (Planned Parenthood v. Danforth and Bellotti v. Baird) in which the Court redefined the entire conception of children's rights. The article suggests that the Supreme Court used a construct of children's constitutional "rights" to restrict the rights of children. By doing so, the Court decisively derailed an incipient children's rights movement that had the potential to liberate children from the dominion of adults. In Danforth, the Court considered for the first time the constitutionality of a state statute that contained a mandatory parental consent provision. The Court struck down that part of …

(E)Racing The Fourth Amendment, Devon W. Carbado

Faculty Articles

It's been almost two years since I pledged allegiance to the United States of America - that is to say, became an American citizen. Before that, I was a permanent resident of America and a citizen of the United Kingdom. Yet, I became a black American long before I acquired American citizenship. Unlike citizenship, black racial naturalization was always available to me, even as I tried to make myself unavailable for that particular Americanization process. Given the negative images of black Americans on 1970s British television and the intra-racial tensions between blacks in the U.K. and blacks in America, I …

New Complexity Theories: From Theoretical Innovation To Doctrinal Reform, Darren L. Hutchinson

Faculty Articles

This Article examines the work of the new complexity or multidimensionality scholars. Most of these scholars are "race-sexuality-gender­class" critics - or scholars whose research introduces sexuality and "queer" theories to the race, gender, and class project initiated by intersectional scholars. This Article seeks to identify concrete points of intervention for multidimensional theorizing. Part II offers an "intellectual history" of the new complexity theories. This section explores the distinctions and similarities among intersectionality literature and the recent contributions of authors in the multidimensionality school. Parts III considers some of the doctrinal implications of new complexity theory and concludes that this work …

So Young And So Untender: Remorseless Children And The Expectations Of The Law, Martha Grace Duncan

Faculty Articles

A nine-year-old speaks with apparent callousness as he walks by the body of the girl he has killed. A fourteen-year-old jokes about "body parts in her pocket" after bashing in her mother's head with a candlestick holder. And a fifteen-year-old laughingly names his accomplice ''Homicide" after participating in a robbery that culminated in the victim's death. Seemingly remorseless acts such as these can have a crucial impact on the way a child or adolescent fares in the juvenile justice or criminal system. Yet, when one looks closely at what the courts interpret as indicators of remorselessness -- ­taking into account …

Seekin’ The Cause: Social Justice Movements And Latcrit Community, Steven W. Bender, Keith Aoki

Faculty Articles

LatCrit VII, held May 2-5, 2002, in Portland, Oregon, adopted the theme Coalitional Theory and Praxis: Social Justice Movements and LatCrit Community. The conference's opening roundtable set an activist tone by centering within LatCrit discourse several progressive movements for sociopolitical transformation existing in academia and beyond. This article embraces the conference theme as an opportunity to examine and compare the LatCrit scholarly movement with those beyond academia, particularly current and past sociopolitical movements originating in Latina/o communities.

Truth As Right And Remedy In International Human Rights Experience, Thomas Antkowiak

Faculty Articles

Early this year, the Inter-American Court of Human Rights in San Jose, Costa Rica, was faced yet again with a seemingly basic question: Does an individual have a legal right to know the truth about the circumstances surrounding the serious human rights violations a loved one has suffered? One might expect to encounter such a privilege in our victim centered system of international human rights protection-especially within the progressive jurisprudence of the Inter-American Court. Yet, it is simply not to be found as a substantive, explicit right. This essay seeks to explore the origins, scope, and key possibilities of an …

The Legitimacy Of Amnesties Under International Law And General Principles Of Anglo-American Law, Ronald Slye

Faculty Articles

This article discusses what makes an amnesty legitimate. The author does this by evaluating amnesties in light of international law critiques of amnesties for human rights violations and from principles of both Anglo-American and international law. First, the author breaks the international law critiques into three schools: the obligation to prosecute, the fundamental rights of victims, and the social stability. From these schools, the author derives principles to evaluate the legitimacy of amnesties. After establishing that the doctrine of non bis in idem is not a barrier to evaluating the legitimacy of foreign amnesties, the author selects areas of law …