Digital Commons Network^™

Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination (Comment), Donna F. Coltharp

Faculty Articles

No abstract provided.

Out Of Sight, Out Of Mind: Is Blind Faith In Incapacitation Justified, Catherine M. Sharkey

Faculty Articles

Book review of Incapacitation: Penal Confinement and the Restraint of Crime, by Franklin E. Zimring and Gordon Hawkins, Oxford University Press, 1995.

Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffrey Fagan, Martin Guggenheim

Faculty Articles

A study was conducted to examine the validity of judicial predictions of dangerousness inherent in preventive detention of juvenile offenders. Data were drawn from juveniles remanded in custody under the preventive detention statute of the New York Family Court Act during 1981 and 1984 and subsequently released within hours of the detention order pursuant to an injunction obtained in a federal district court. It is argued that there are reasonable and constitutional arguments to incapacitate a presumptively innocent individual when it is certain that he or she is dangerous. However, it is demonstrated that whenever a significant number of persons …

Reverse Racism!: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

Faculty Articles

In this essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Failed Enterprise: The Supreme Court's Habeas Reform, Barry Friedman

Faculty Articles

Nearly two decades ago, the Supreme Court began an effort to reform habeas corpus. Despite academic criticism, congressional displeasure, and internal disagreement, the Court's effort to limit the availability of habeas relief is still ongoing. Much has been written about whether the Court is pursuing the correct goals in its reform effort. This Article accepts the Court's own goals-fairness, finality, federalism, and judicial economyas a given. Rather than evaluating the Supreme Court's habeas reform by an independent normative standard, Professor Friedman examines whether the reform effort advances the very goals it is designed to further. The author suggests that habeas …

About Outing: Public Discourse, Private Lives, Katheleen Guzman

Faculty Articles

No abstract provided.

The Feminist Challenge In Criminal Law, Stephen J. Schulhofer

Faculty Articles

Feminist criticism of criminal law and criminal justice administration has proliferated over the past decade and now touches scores of doctrinal, practical, and theoretical issues. These critiques and the associated proposals for reform are usually acknowledged to be controversial (and even "radical") by proponents and opponents alike. Yet, across a wide range of issues, the feminist position has its basis in a simple fact that cannot be considered debatable: criminal law is, from top to bottom, preoccupied with male concerns and male perspectives. In this Article, I explain why this seemingly tendentious claim is not only accurate but uncontroversial. I …

Texas’S New Habeas Corpus Procedure For Death-Row Inmates: Kafkaesque-And Probably Unconstitutional, James C. Harrington, Anne More Burnham

Faculty Articles

Texas courts should embrace their duty to protect the constitution and forbid the legislature from pursuing a politically popular agenda at the expense of the fundamental rights of certain citizens. Article 11.071 of the Texas Code of Criminal Procedure runs afoul of the language, intent, and purpose of Texas constitutional guarantees, and eliminates procedural protections designed to guard against the execution of innocent persons.

The Texas Legislature should not be allowed to shorten the time period for seeking habeas relief. Article 11.071 violates the due course of law provisions of the Texas Constitution and violates the Texas equal rights provision. …

The Fragmentation Of Federal Rules, Erwin Chemerinsky, Barry Friedman

Faculty Articles

Focuses on the localism trend of federal rules in the United States. Non-governing practice of conformity; Central accomplishment of uniform federal rule; Civil Justice Reform Act of 1990.

Custodial Choices For Children At Risk: Bias, Sequentiality, And The Law, Peggy C. Davis, Gautam Barua

Faculty Articles

Professor Davis, with Gautam Barua, analyzes the effects cognitive bias in risk assessment have on child placement decision-making.

Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth

Faculty Articles

In this article, Professor Ainsworth argues that a unified criminal justice system is preferable to our present two-tiered adult-juvenile court system. In fact, she contends that the cultural and ideological assumptions that underpin the current two-tiered justice system not only engender many of the serious shortcomings of the juvenile justice system, but also serve to exacerbate the very policies and practices of the adult criminal justice system that make it so abhorrent to defenders of the juvenile court. Critics of juvenile court abolitionists thus miss the point when they argue that juveniles would be worse off than they are at …

Sentencing Guidelines And Prosecutorial Discretion, David Boerner

Faculty Articles

This article explores the topic of sentencing guidelines. Specifically, the author weighs the intended role of such guidelines against their role in actuality, noting the discrepancy between the two. The article concludes that it is up to the values and skill of those who implement the sentencing guidelines for their proper manifestation in the legislative process.

Whatever Happened To The Right To Treatment: The Modern Quest For An Historical Promise, Paul Holland, Wallace Mlyniec

Faculty Articles

Since the creation of the first juvenile court in 1899, state training schools have been the primary place of confinement for children removed from their homes. In theory such places were supposed to be home-like and rehabilitative in their facilities and care. In reality they were usually impersonal, understaffed, unhealthy, and even dangerous institutions, devoid of rehabilitative programs. From the late 1960s to the early 1980s, advocates for children pursued legislative and other policy reforms. They argued that children in state institutions had both a statutory and constitutional €œright to treatment. In this context, the authors of this article reassess …

Deliberate Indifference: Judicial Tolerance Of Racial Bias In Criminal Justice, Bryan A. Stevenson, Ruth E. Friedman

Faculty Articles

It seems unimaginable that the Supreme Court, an institution vested with the responsibility to achieve "equal justice under the law" for all Americans, could issue an opinion that accepted the inevitability of racial bias in an area as serious and final as capital punishment. However, it is precisely this acceptance of bias and the tolerance of racial discrimination that has come to define America's criminal justice system. The last thirty years have seen remarkable changes in America's relationship with people of color. The civil rights movement has ushered in significant developments in antidiscrimination law and has profoundly affected the status …

Gays And Lesbians In The Military: A Rationally Based Solution To A Legal Rubik’S Cube, David A. Schlueter

Faculty Articles

This article addresses legislation which was an attempt to accommodate homosexuals serving in the military. The author concludes that Congress had a rational basis for adopting a policy of limited accommodation. The issue of homosexuals in the armed forces presented Congress with a significant challenge to the exercise of its constitutionally-based powers to regulate the military. Prior to the enactment of the “don’t ask, don’t tell” policy, homosexuals were banned from service in the United States military. Congress had the option to continue the ban on homosexuals in the military, become fully accommodating by allowing them to serve openly, or …

Solving The Drug Enforcement Dilemma: Lessons From Economics, Stephen J. Schulhofer

Faculty Articles

Skeptics wonder whether drug prohibition is worth its costs. But legalization is a complex and risky proposition, with political acceptability verging on zero. Thus, we redouble our commitment to vigorous enforcement of drug laws. Each year, the President's Office of National Drug Control Policy calls for another round of increases in expenditure for investigation, prosecution, and imprisonment of drug dealers. Yet success on this front is elusive and partly self-defeating. The billions we invest seldom bring tangible results, and dramatic drug seizures, when they occur, are rapidly offset by new shipments and alternate sources of supply. Worst of all, the …

In Slime And Darkness: The Metaphor Of Filth In Criminal Justice, Martha Grace Duncan

Faculty Articles

An article such as this one, which seeks to examine the labyrinthine chains of meanings that we associate with illegal behavior, cries out for an interdisciplinary approach. Specifically, it demands a source that can reveal our unconscious as well as our conscious associations. Such a source is classical literature -- works of fiction that, by virtue of being read and loved through centuries and across continents, have proven their capacity to strike a responsive chord in their readers. Therefore, in Part II of this Article, I employ the classics, supplemented by occasional examples from contemporary fiction, history, and theology, to …

Redefining The Sixth Amendment, John B. Mitchell

Faculty Articles

This article compares public defenders in lower courts with public defenders in superior courts across the country. The article concludes that lower criminal courts suffer from problems of funding and resource allocation and that these issues must be addressed before they can adequately administer justice.

Reading Between The Lines: Indigent Defense Issues And The Restatement Of The Law Governing Lawyers, Kim A. Taylor-Thompson

Faculty Articles

In the development and analysis of rules of professional responsibility, it has long been recognized that criminal defense is, simply stated, different. Many ethical codes acknowledge this distinction but rarely explain the difference sufficiently to provide practical guidance. And, frankly, if criminal defense is characterized as "different," then indigent defense should probably be described as "peculiar." When the attorney-client relationship is formed not by client choice, but by judicial appointment, dilemmas arise beyond those traditionally recognized in ethics codes. Moreover, prevailing indigent defense delivery systems are not uniform and generate unique ethical issues. To its credit, the Restatement of the …

Face At The Bottom Of The Well (Book Review), Willy E. Rice

Faculty Articles

No abstract provided.

Evolution And Revolution In Family Law, Victoria M. Mather

Faculty Articles

Family law has significantly changed over the last twenty-five years, and certain areas will likely continue to change. Family law tends to follow, rather than lead, social upheaval and adjustment in family decisions and structures. The most important legal changes in family law are a result of massive shifts in American social, political, and economic constructs in the 1960s, 1970s, and 1980s.

Family law will continue to evolve because of three critical developments. First is the expansion of the concept of what constitutes a “family” in the modern context. Next is the treatment of children as autonomous individuals, separate and …

Rethinking Indigent Defense: Promoting Effective Representation Through Consumer Sovereignty And Freedom Of Choice For All Criminal Defendants, Stephen J. Schulhofer, David D. Friedman

Faculty Articles

Part I of the Article analyzes the structure of the attorney-client relationship and identifies the problems that contractual or institutional arrangements must seek to minimize. Part I describes existing methods for the delivery of indigent defense services and assesses their ability to address these problems. Part III develops alternatives to existing arrangements. We consider three groups of approaches: insurance models, deregulation models and voucher models. We conclude that insurance models, though theoretically revealing, are impractical. Deregulation models offer an immediate, easily implemented but partial solution. The more ambitious voucher models, adapted to local conditions in various jurisdictions, provide a practical …

The Role Of The Legislature In Guidelines Sentencing In The "Other Washington", David Boerner

Faculty Articles

Washington's legislature crafted a sentencing system which structures but does not eliminate discretionary decisions affecting sentences. Washington has a Sentencing Guidelines Commission which functions as an agent of the legislature and not as an independent actor. Data collected by the Sentencing Guidelines Commission since 1985 demonstrate the effectiveness of Washington's sentencing guidelines in translating the legislature's sentencing policy judgments into reality. The legislature's role in formulating and refining sentencing policies is examined in detail, as well as Washington's Sentencing Reform Act of 1981 and its effect on sentencing.

In A Different Register: The Pragmatics Of Powerlessness In Police Interrogation, Janet Ainsworth

Faculty Articles

In a majority of states, a suspect is deemed to have invoked the Miranda right to counsel only if the suspect's request is clear and unequivocal. This doctrine is challenged as an insufficient protection of constitutional rights. It is argued that courts should treat even ambiguous and equivocal requests as per se effective innovations of the right to counsel.

Bringing Law To Sentencing, David Boerner

Faculty Articles

This article outlines the evolution of sentencing standards over the years. It identifies several key events in the progression toward a more lawful approach to sentencing.

When “Special Needs” Meet Probable Cause: Denying The Devil Benefit Of Law, Gerald S. Reamey

Faculty Articles

Removing laws to pursue the lawbreaker may be well intentioned, but the result is that society is susceptible to the evils those laws protect against. The traditional Fourth Amendment safeguards--probable cause and warrants--have been abandoned due to the development of a reasonableness standard because of the presence of “special needs” that were used to justify searches. The adoption of this alternative approach to Fourth Amendment interpretation was signalled by the truly landmark case of Terry v. Ohio.

By adopting the “reasonableness” analysis, the Supreme Court altered the impact of the exclusionary rule without directly modifying the rule. After Griffin v. …

A Scary Tale: Battered Women Who Kill Their Abusers, Victoria M. Mather

Faculty Articles

In recent years there has been a lot of attention focused on the specific issue of the battered women, and the battered women who eventually fight violence with violence. This is with good reason, since it is a widespread and serious problem for modern society. The authors whose works are discussed here struggle with notions of male dominance, experiment with legal tests, and manipulate the instruments of law enforcement in an attempt to figure out exactly what to do with, and for, these people in abusive relationships. However, as the authors themselves indicate, the problem is much deeper in modern …

Habeas And Hubris, Barry Friedman

Faculty Articles

This article develops a more convincing rationale for Teague than that provided by the Court but nonetheless concludes the Court erred seriously in deciding as it did. Part II of this Article describes the rule and impact of the Teague cases and criticizes the disingenuous road the Court took to its decision. Part III offers an alternative explanation for Teague. This part explains that just as the Supreme Court created habeas corpus jurisdiction for the very purpose of expanding and protecting due process rights, so the Court may constrict the availability of the writ if it perceives that the job …

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

Introduction: Multidimensional Lawyering And Professional Responsibility, Margaret Chon

Faculty Articles

Professor Margaret Chon introduces three following articles in which the authors posit the identity of the lawyer not just as client representative, but in the multiple roles of respondent to other people, entities and underlying societal values. Each article contributes to the formation of the self qua lawyer by showing how attorneys can and do respond to foils other than clients.