Digital Commons Network^™

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …

A Primer On Criminal Child Abuse And Neglect Law, Douglas E. Abrams

Faculty Publications

No abstract provided.

Order, Technology And The Constitutional Meanings Of Criminal Procedure, Thomas P. Crocker

Faculty Publications

No abstract provided.

A Quantity-Driven Solution To Aggregate Grouping Under The U.S. Sentencing Guidelines Manual, Kevin Bennardo

Faculty Publications

No abstract provided.

Physician Participation In Executions, The Morality Of Capital Punishment, And The Practical Implications Of Their Relationship, Paul J. Litton

Faculty Publications

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections. In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.

School Bullying Victimization As An Educational Disability, Douglas E. Abrams

Faculty Publications

Parts I and II of this essay urge school authorities, parents, and other concerned citizens to perceive bullying victimization as a disability that burdens targeted students. Since 1975, the federal Individuals with Disabilities Education Act (IDEA) has guaranteed “full educational opportunity to all children with disabilities” in every state. The IDEA reaches both congenital disabilities and disabilities that, like bullying victimization, stem from events or circumstances unrelated to biology or birth. To set the context for perceiving bullying victimization as an educational disability, Part I describes the public schools' central role in protecting bullied students, and then briefly discusses the …

Two Truths And A Lie: Stories At The Juncture Of Teen Sex And The Law, Michelle Oberman

Faculty Publications

Laws governing adolescent sexuality are incoherent and chaotically enforced, and legal scholarship on the subject neither addresses nor remedies adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about adolescent sexuality from both the academic literature and the adults who control the criminal justice response to such interactions. This article presents an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen-year-olds. Using this case, I explore the implications of the prosecution by interviewing a variety of experts and analyzing the …

Judges Talking To Jurors In Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else, Paul Marcus

Faculty Publications

No abstract provided.

The First Day Of Criminal Law: Forgetting Everything You Thought You Already Knew, Kami Chavis Simmons

Faculty Publications

Whether from the media or the seemingly endless rotation of Law and Order episodes, many students enter law school with a great deal of knowledge about important concepts that dominate Criminal Law, including murder, manslaughter, conspiracy, self-defense, or insanity. This familiarity with criminal law presents a dual challenge for students and professors alike. First, as future lawyers, they must force themselves to think critically about these familiar topics, and despite their basic knowledge of the criminal justice system, students quickly learn that there is much more to criminal law than meets the eye. Second, part of this critical analysis requires …

Marking The 50th Anniversary Of Gideon, Neil Fulton, Tim Purdon

Faculty Publications

Here in North Dakota, the U.S Attorney's Office and the Federal Public Defender's Office are engaged in joint efforts to protect this important right. For example, we have worked together on training for private defense lawyers who take appointments to represent indigent defendants at compensation rates well below what they charge the general public. We have both reached out to tribal officials to provide training for prosecutors and defense attorneys in tribal courts. We have begun discussions with other court officials about ways to keep those convicted from committing new offenses by targeting resources at re-entry, so they leave the …

Non-Market Values In Family Businesses, Benjamin Means

Faculty Publications

Despite the economic importance of family businesses, legal scholarship has often overlooked their distinctive character. Instead, scholars focus on the chosen form of business organization — partnership, corporation, LLC — and assume that the participants are economically rational actors who seek to maximize their individual preferences. This Article contends that family businesses are an extension of family relationships and that non-market values affect their goals and governance choices.

Just as family law scholars have shown that contract principles can be applied to regulate intimate relationships, corporate law scholars should recognize that the intimacy of family life often substitutes for arms-length …

Overcharging, Kyle Graham

Faculty Publications

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various …

Counting The Economic Costs And Policy Implications Associated With Divorce: Texas As A Case Study, David G. Schramm, Steven M. Harris, Jason B. Whiting Phd, Alan J. Hawkins, Matt Brown, Rob Porter

Faculty Publications

Although many adults and children are resilient after divorce, it is common for marital breakups to precipitate the need for government assistance for families who had been self-sufficient. This study focuses on the economic costs of divorce associated with means-tested welfare programs in Texas, which fall into five central areas: medical assistance; cash assistance; food assistance; housing, energy, and utility assistance; and child care and development assistance. The study estimated that Texas spends at least $3.18 billion on divorce and its related consequences each year, accounting for approximately 12% of the total Texas budget in 2008. These results reinforce the …

Violence Prevention In Middle School: A Preliminary Study, Wendy K. Killam, Catherine B. Roland, Bill Weber

Faculty Publications

Violence in schools continues reflecting violence within society. There is a growing need for violence prevention programs within the schools that provide students with the skills needed to cope with interpersonal and relationship is-sues effectively. This study was conducted at a middle school and there were 345 middle school students (6th to 8th grade) who participated in the study. The students participated in a violence prevention program. In this study, the researchers used a pre-test/post-test design and the results indicated that there were some changes in attitudes towards violence that occurred after the intervention.

Book Review: (The History Of) Criminal Justice As A Morality Play, Michael M. O'Hear

Faculty Publications

Stephanos Bibas's new book, The Machinery of Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a "participatory morality play," in which ordinary members of the community played a crucial role. In Bibas's view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas's book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects …

Limitations (A Response To Judge Posner), Chad M. Oldfather

Faculty Publications

In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations ­- the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging.

This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that …

Two Cheers For The New Paradigm, Michael M. O'Hear

Faculty Publications

This brief essay comments on Attorney General Eric Holder's much-publicized announcement in 2013 of new federal prosecution priorities. While Holder's announcement represents a welcome shift away from the rigid legalism that has dominated federal prosecutorial policies for a generation, some concerns are also highlighted in the essay.

Mass Incarceration In Three Midwestern States: Origins And Trends, Michael M. O'Hear

Faculty Publications

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and …

Not Just Kid Stuff? Extending Graham And Miller To Adults, Michael M. O'Hear

Faculty Publications

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are …

The Right To Appeal, Cassandra Burke Robertson

Faculty Publications

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.

In this …

Blanket Retroactive Amelioration: A Remedy For Disproportionate Punishments, S. David Mitchell

Faculty Publications

While statutes determine the conditions under which an individual is to be held accountable for their actions and identifies the punishment that shall attach to that conduct, they are not engraved in stone. Laws can and are changed. Legislatures will revisit whether a penalty is too harsh (or too lenient), and amend an existing statute to reflect the legislature’s evaluation of what is contemporaneously appropriate. This re-evaluation of a statutory punishment is ongoing assessment to determine whether the punishment is proportional to the conduct. Blanket retroactive amelioration allows society to correct overly harsh, overreactions and to restore the balance between …

Race In Biological And Biomedical Research, Richard S. Cooper

Faculty Publications

The concept of race has had a significant influence on research in human biology since the early 19th century. But race was given its meaning and social impact in the political sphere and subsequently intervened in science as a foreign concept, not grounded in the dominant empiricism of modern biology. The uses of race in sciencewere therefore often disruptive and controversial; at times, science had to be retrofitted to accommodate race, and science in turn was often used to explain and justify race. This relationship was unstable in large part because race was about a phenomenon that could not be …

Law, Social Movements, And The Political Economy Of Domestic Violence, Deborah M. Weissman

Faculty Publications

No abstract provided.

Promoting Language Access In The Legal Academy, Gillian Dutton, Beth Lyon, Jayesh M. Rathod, Deborah M. Weissman

Faculty Publications

No abstract provided.

School-Based Legal Services As A Tool In Dismantling The School-To-Prison Pipeline And Achieving Educational Equity, Barbara A. Fedders, Jason Langberg

Faculty Publications

No abstract provided.

"What Else Could I Do?": Single Mothers And Infanticide, 1900-1950 [Book Review], Michelle Oberman

Faculty Publications

In her book ‘What Else Could I Do?’: Single Mothers and Infanticide, 1900–1950, Cliona Rattigan excavates a narrow, yet deep cache of cases about one of the world’s oldest and saddest phenomena: mothers who kill their children. Rattigan’s painstaking investigation of 300 such cases from Ireland, drawn from a half century during which the country knew great political turmoil, casts light on a more intimate, yet equally profound turmoil that took place among unmarried pregnant women during that same period in time. As the title suggests, in this history Rattigan dispels the notion that infanticide is a random crime committed …

Does Living By The Sword Mean Dying By The Sword?, Charles Chernor Jalloh

Faculty Publications

What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milošević have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milošević died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia. This article examines the right to self-representation in international criminal law. Using a comparative law …

Cristina's World: Lessons From El Salvador's Ban On Abortion, Michelle Oberman

Faculty Publications

No abstract provided.

A Social Justice Lens Turned On Legal Education: Next Steps In Representing The Vulnerable And Inspiring Law Students, Stephanie M. Wildman, Deborah Moss-West

Faculty Publications

No abstract provided.

What Makes A Crime Against Humanity A Crime Against Humanity?, Charles Chernor Jalloh

Faculty Publications

This article examines what makes a crime against humanity a crime against humanity as opposed to an ordinary offense under domestic criminal law. One answer is to say that any systematic or widespread attack against a civilian population which is sponsored, supported or condoned by the State is a crime against humanity. Another interpretation is that any widespread or systematic attacks against civilians which “infringe on basic human values” should be classified as crimes against humanity. This paper will use the Rome Statute and emerging case law of the International Criminal Court (ICC) to argue that neither of the two …