Digital Commons Network^™

Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie

Faculty Publications

When one of the three judges hearing the case against Vojislav Šešelj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge — who has not spent a single day participating in the proceedings — has familiarized himself with the trial record. This article demonstrates why the plan to proceed with a new judge is both procedurally illegitimate and markedly at odds with the ICTY’s statutory guarantee of a …

In Solidarity: Collaborations In Lgbtq+ Activism, Lisa M. Tillmann Ph.D., Kathryn L. Norsworthy

Faculty Publications

What follows is a fictional account. Our “characters” bear our real names; the other eight are composites of students we have taught and from whom we have learned; activists with whom we have worked; and staff, faculty, and administrators we have trained in venues such as Safe Zone. We portray our ally (Lisa)-lesbian (Kathryn) relationship this way for two reasons: one, we had not secured permission from real students, colleagues, or community members to represent their lives and experiences, and two, we seek a way to show our partnership, both personal and professional since 2000, in action. To each of …

The Mirage Of Immigration Reform, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Intergrating Skills And Collaborating Across Law Schools: An Example From Immigration Law, Anna R. Welch

Faculty Publications

This Essay discusses the design and implementation of introductory Immigration Law courses taught at two different law schools, Western State College of Law in Orange County, California and the University of Maine Law School in Portland, Maine. Although the courses took place on opposite coasts and did not engage in a formal partnership that was visible to students, the authors deliberately planned the courses in close collaboration with one another behind the scenes. In doing so, the courses shared the explicit goal of increasing students’ exposure to practical lawyering skills while reinforcing students’ understanding of the substantive immigration laws. This …

On The Argument That Execution Protocol Reform Is Biomedical Research, Paul J. Litton

Faculty Publications

Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure. Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.” Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated. Shah argues that research requirements, such as informed consent and IRB review, are necessary to render the research …

Latino Stats: American Hispanics By The Numbers, Leticia Camacho

Faculty Publications

Today, 53 million Latinos live in the US, and Latino Stats provides an informative, positive portrait of this fast-growing population group. T he book, written by Malavé and Giordani, a Hispanic American mother and daughter research team, provides statistical data gathered primarily from government, private sector, nonprofit, and media sources. Ten chapters cover the basics of immigration, voting and politics, jobs and the economy, family and community, youth and education, health and environment, criminal justice, entertainment, technology, and sports and identity. Each chapter starts with a quote from a famous Hispanic American followed by a short introduction and a section …

Institutional Racism: Perspectives On The Department Of Justice's Investigation Of The Ferguson Police Department., Cassandra Chaney Phd

Faculty Publications

On August 9, 2014, Michael Brown, an 18-year old Black man, was fatally shot by Darren Wilson, a white policeman with the Ferguson Police Department. The incident sparked protests and acts of vandalism in Ferguson as well as widespread calls for an investigation into the incident. On September 3, 2014, The Justice Department announced that it would open a broad civil rights investigation that would examine whether the Ferguson police had a history of discrimination or misuse of force beyond the Michael Brown case. On March 4. 2015, Attorney General Eric H. Holder publicly criticized the Ferguson Police Department …

Economies Of Violence, John Protevi

Faculty Publications

I discuss "economies of violence," comparing non-state (acephalic forager bands and horticultural chiefdoms) and state societies. Capital punishment and tolerated personal revenge in forager bands is both anti-war and anti-state, while some chiefdoms practice war as an anti-state practice.

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Publications

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach—unequal allocation of peremptory challenges to prosecution and defense—and yet many state legislatures have recently abandoned asymmetry, with some legislators declaring …

It's Alive!: How Early Common Law Changes In The Right Against Self-Incrimination Inform The Right's Continuing Relevance, Sheldon Evans

Faculty Publications

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article …

The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, …

Using Principles From Cognitive Behavioral Therapy To Reduce Nervousness In Oral Argument Or Moot Court, Larry Cunningham

Faculty Publications

Sarah, a new attorney at a public defender’s office, is assigned to the appeals bureau. Ordinarily, Sarah spends her days researching and writing briefs, talking with clients, and brainstorming legal issues with colleagues. Today, however, she opened the mail to find a notice from the court setting a date for her first oral argument. She suffers the first of several anxiety attacks: rapid heart rate, racing thoughts, shortness of breath, sweaty palms, nausea, and feelings of panic and tension. As she reads the form letter, her hands tremble. This is the day she has dreaded. She loves to write and …

Privacy And Court Records: An Empirical Study, David S. Ardia, Anne Klinefelter

Faculty Publications

No abstract provided.

Post-Sentencing Appellate Waivers, Kevin Bennardo

Faculty Publications

No abstract provided.

Understanding The Judicial Conference Committee On International Judicial Relations, Sam F. Halabi, Nanette K. Laughrey

Faculty Publications

Since 1993, the Judicial Conference Committee on International Judicial Relations has coordinated outreach and exchange activities of the federal judiciary in support of rule-of-law initiatives. While the Federal Judicial Center has endeavored to publicize the Committee’s work, and members of the Committee have on occasion written and spoken about their work for the Committee, the scholarly treatment of the Committee remains sparse. What discussion does exist in the academic literature tends to depict the Committee in one of two ways. First, the Committee formed in response to the emergence of newly independent states after the 1991 Soviet collapse. Those states …

Recusal Failure, Dmitry Bam

Faculty Publications

The American judiciary is suffering from a terrible affliction: biased judges. I am not talking about the subconscious or unconscious biases — stemming from different backgrounds, experiences, ideologies, etc. — that everyone, including judges, harbors. Rather, I am describing invidious, improper biases that lead judges to favor one litigant over another for reasons that almost everyone would agree should play no role in judicial decision-making: the desire to repay a debt of gratitude to those who helped the judge get elected and be reelected.

In this article, I argue that that recusal has failed to prevent biased judges from rendering …

Implicit Bias And The American Juror, Jennifer K. Elek, Paula Hannaford-Agor

Faculty Publications

On March 4, 2015, the United States Department of Justice (DOJ) released a report of findings in its investigation of the Ferguson, Missouri, criminal-justice system. The report con­tributed to the still-growing body of literature acknowledging contemporary racial inequality and recognizing that these dis­parities may not be explained on the basis of people's explicit, intentional biases alone. Although the possible effects of implicit bias on justice-sys­tem outcomes should be considered at each decision point in case processing, we focus in this article on the potential effects of implicit bias in the decision making of everyday American citizens who are randomly selected …

Increasing Police Accountability: Restoring Trust And Legitimacy Through The Appointment Of Independent Prosecutors, Kami Chavis Simmons

Faculty Publications

Criminal prosecution of police officers raises a myriad of issues that this Article will begin to explore. First, while there has been a paradigmatic shift in police accountability in recent decades from remedies focusing on individual officers to those focusing on broad organizational reform, this Article will explore the important role that the deterrence rationale of criminal prosecution might play as one tool to address police misconduct. Second, other than deterrence, criminal prosecutions serve numerous goals, including retribution for the harms imposed upon the victims and society for the crimes. Historically, many racial minorities, when compared with their white counterparts, …

From Prosecutorial To Reparatory: A Valuable Post-Conflict Change Of Focus, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Let The Good Time Roll: Early Release For Good Behavior In Prison, Michael M. O'Hear

Faculty Publications

No abstract provided.

The Politics Of Narrative: Law And The Representation Of Mexican Criminality, Deborah Weissman

Faculty Publications

No abstract provided.

The Law And Politics Of The Charles Taylor Case, Charles Chernor Jalloh

Faculty Publications

This article discusses a rare successful prosecution of a head of state by a modern international criminal court. The case involved former Liberian president Charles Taylor. Taylor, who was charged and tried by the United Nations-backed Special Court for Sierra Leone (“SCSL”), was convicted in April 2013 for planning and aiding and abetting war crimes, crimes against humanity, and other serious international humanitarian law violations. He was sentenced to 50 years imprisonment. The SCSL Appeals Chamber upheld the historic conviction and sentence in September 2013. Taylor is currently serving his sentence in Great Britain. This article, from an insider who …

Rights, Remedies, And The Quantum And Burden Of Proof, Joelle A. Moreno

Faculty Publications

It is tempting to commemorate the 2014 centenary of the exclusionary rule by celebrating our historically progressive role in constitutional rights protection, but those familiar with the facts know that Fourth Amendment violations persist unabated. As New Yorkers consider Judge Scheindlin’s damning assessment of police stop-and-frisk practices, and the country erupts in protests following fatal police encounters, are legal scholars who continue to pontificate on constitutional bona fides addressing “real” Fourth Amendment questions?

Traditional academic abstraction and artificial doctrinal divides obscure the fact that rights and remedies are defined by their operation. Constitutional rights have no value if, after they …

The Compassion Fatigue And Resilience Connection: A Survey Of Resilience, Compassion Fatigue, Burnout, And Compassion Satisfaction Among Trauma Responders, Harvey J. Burnett Jr, Kathleen Wahl

Faculty Publications

Research has shown that compassion fatigue is associated with burnout and compassion satisfaction. Practically no studies have examined how resilience may impact these variables. This study examined how resilience is related to compassion fatigue, burnout, and compassion satisfaction among a convenience sample of disaster behavioral health and emergency preparedness responders (N =139) attending a training conference in Michigan. Measures included the 30-item Professional Quality of Life Scale, the 14-item Resilience Scale, and a demographic questionnaire. Seventy-two percent of the participants were at risk for compassion fatigue, while 19% were at risk for burnout. Only 22% of participants had scores indicative …

Superdelegation And Gatekeeping In Bankruptcy Courts, Melissa B. Jacoby

Faculty Publications

No abstract provided.

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Rethinking A New Domestic Violence Pedagogy, Deborah M. Weissman

Faculty Publications

No abstract provided.

The Case For Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Faculty Publications

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of …

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …