Digital Commons Network^™

Rethinking Voir Dire, Eric R. Carpenter

Faculty Publications

No abstract provided.

Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller

Faculty Publications

No abstract provided.

Who Watches The Watchers In Public Corruption Cases?, Richard E. Myers Ii

Faculty Publications

No abstract provided.

Modern Police Practices: Arizona V. Gant's Illusory Restriction Of Vehicle Searches Incident To Arrest, Seth W. Stoughton

Faculty Publications

In 2009, the Supreme Court overturned thirty years of precedent with a decision that purported to dramatically cut back on the ability of law enforcement officers to conduct warrantless vehicle searches incident to the arrest of a vehicle occupant. Scholars and commentators celebrated Arizona v. Gant’s constraint of police, and subsequent scholarship has focused exclusively on peripheral concerns such as alternative justifications for warrantless searches and Gant’s effect on non-vehicle searches. This Note challenges the core assumption that Gant will substantially limit vehicle searches incident to arrest, contending that Gant is far more permissive than it appears. In most cases, …

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …

Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams

Faculty Publications

Chief Justice William H. Rehnquist called Lochner v. New York (1905) “one of the most ill-starred decisions that [the Supreme Court ever rendered.” The Justices’ deliberations preceding the 5-4 decision demonstrate the courts’ reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state’s “incredibly sketchy” brief and Joseph Lochner’s sterling submission may have determined Lochner’s outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York’s maximum-hours law for bakery workers was a reasonable public health …

Beginning To End Racial Profiling: Definitive Solutions To An Elusive Problem, Kami Chavis Simmons

Faculty Publications

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim's claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities'] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication …

Problem Profiles Of At-Risk Youth In Two Service Programs: A Multigroup Exploratory Latent Class Analysis, Richard Dembo, Rhissa Briones-Robinson, Rocío Aracelis Ungaro, Lora M. Karas, Laura M. Gulledge, Paul Greenbaum, James Schmeidler, Ken C. Winters, Steven Belenko

Faculty Publications

Baseline data collected in two brief intervention projects (BI-Court and Truancy Project) were used to assess similarities and differences in subgroups of at-risk youth. Classifications of these subgroups were based on their psychosocial characteristics (e. g., substance use). Multigroup latent class analysis identified two BI-Court subgroups of youth and three truant subgroups. These classes can be viewed as differing along two dimensions, substance use involvement and emotional and behavioral issues. Equality tests of means across the latent classes for BI-Court and Truancy Project youths found significant differences that were consistent with their problem group classification. These findings highlight the importance …

Reason And Passion: Justice Jackson And The Second Flag Salute Case (Part Ii), Douglas E. Abrams

Faculty Publications

No abstract provided.

Racial/Ethnic Matching Of Clients And Therapists In Mental Health Services: A Meta-Analytic Review Of Preferences, Perceptions, And Outcomes, Timothy B. Smith, Raquel R. Cabral

Faculty Publications

The effects of matching clients with therapists of the same race/ethnicity have been explored using a variety of approaches across several decades. We conducted a meta-analysis of three variables frequently used in research on racial/ethnic matching: Clients' preferences for a therapist of their own race/ethnicity, clients' perceptions of therapists, and therapeutic outcomes. Across 52 studies of preferences, the average effect size was d = .63, indicating a moderately strong preference for a therapist of one's own race/ethnicity. Across 81 studies of individuals' perceptions of therapists, the average effect size was d = .32, indicating a tendency to perceive therapists of …

Assessing The Forms And Functions Of Aggression Using Self-Report: Factor Structure And Invariance Of The Peer Conflict Scale In Youths, Monica A. Marsee, Christopher T. Barry, Kristina K. Childs, Paul J. Frick, Eva R. Kimonis, Luna C. Muñoz, Katherine J. Aucoin, Gregory M. Fassnacht, Melissa M. Kunimatsu, Katherine S.L. Lau

Faculty Publications

This study examined the structure of a self-report measure of the forms and functions of aggression in 855 adolescents (582 boys, 266 girls) aged 12 to 19 years recruited from high school, detained, and residential settings. The Peer Conflict Scale (PCS) is a 40-item measure that was developed to improve upon existing measures and provide an efficient, reliable, and valid assessment of four dimensions of aggression (i.e., reactive overt, reactive relational, proactive overt, and proactive relational) in youths. Confirmatory factor analyses showed that a 4-factor model represented a satisfactory solution for the data. The factor structure fit well for both …

Pathways To Sexual Risk Taking Among Female Adolescent Detainees, Vera Lopez, Albert M. Kopak, Alyssa G. Robillard, Mary Rogers Gillmore, Rhonda Conerly Holliday, Ronald L. Braithwaite

Faculty Publications

Sexual risk taking among female delinquents represents a significant public health problem. Research is needed to understand the pathways leading to sexual risk taking among this population. This study sought to address this issue by identifying and testing two pathways from child maltreatment to non-condom use among 329 White and 484 African American female adolescent detainees: a relational pathway and a substance use coping pathway. The relational pathway indicated that child maltreatment would be related to non-condom use via depressive self-concept and condom use self-efficacy. The substance use coping pathway suggested that depressive self-concept and alcohol-based expectancies for sexual enhancement …

Bargaining Inside The Black Box, Allison Orr Larsen

Faculty Publications

When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Faculty Publications

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

What Great Writers Can Teach Lawyers And Judges: Precise, Concise, Simple And Clear, Douglas E. Abrams

Faculty Publications

Despite some imperfections across disciplines, advice from well-known fiction and non-fiction writers can serve lawyers and judges well because law, in its essence, is a literary profession heavily dependent on the written word. There are only two types of writing - good writing and bad writing. As poet (and Massachusetts Bar member) Archibald MacLeish recognized, good legal writing is simply good writing about a legal subject. "Lawyers would be better off," said MacLeish, "if they stopped thinking of the language of the law as a different language and realized that the art of writing for legal purposes is in no …

Widening Batson's Net To Ensnare More Than The Unapologetically Bigoted Or Painfully Unimaginative Attorney, Jeffrey Bellin, Junichi P. Semitsu

Faculty Publications

In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge—the unbounded collection of justifications that courts, including the Supreme Court, accept as “race neutral.”

To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000–2009) that …

Why Should States Pay For Prisons, When Local Officials Decide Who Goes There?, W. David Ball

Faculty Publications

In the United States, states typically pay for prisons, even though the decisions that lead to prison admissions — arresting, charging, and sentencing — are made by local officials. The practice of state subsidies is relatively recent: there were no state prisons in the early part of the country’s history, and even as state institutions began to be developed, they largely supported themselves financially, rendering the notion of subsidies moot. Given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable …

Finding The Key Players In Online Child Exploitation Networks, Bryce Westlake, Martin Bouchard, Richard Frank

Faculty Publications

The growth of the Internet has been paralleled with a similar growth in online child exploitation. Since completely shutting down child exploitation websites is difficult (or arguably impossible), the goal must be to find the most efficient way of identifying the key targets and then to apprehend them. Traditionally, online investigations have been manual and centered on images. However, we argue that target prioritization needs to take more than just images into consideration, and that the investigating process needs to become more systematic. Drawing from a web crawler we specifically designed for extracting child exploitation website networks, this study 1) …

Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell

Faculty Publications

Part I of this article details the Bureau of Prisons' rules and policies governing inmate placement, including the most recent iteration. Part II examines Chevron27 and the Bureau of Prisons' extraordinary justification exception rule. Part III turns to the threshold matter of obtaining judicial access to challenge the Bureau of Prisons' new rule, with Part III.A arguing that the federal courts should relax their standards when faced with exceptions to the exhaustion requirement and Part III.B arguing for the adoption of a federal public importance exception to the mootness doctrine. The article concludes that these changes will further Congress' dual …

State Methamphetamine Precursor Policies And Changes In Small Toxic Lab Methamphetamine Production, Duane C. Mcbride, Yvonne Terry-Mcelrath, Jamie Chriqui, Jean O'Connor, Curtis J. Vanderwaal, Karen Mattson

Faculty Publications

Domestic production of methamphetamine in small toxic labs (STLs) results in significant community safety and health consequences. This paper examines the effects of state-level policies implemented in the middle of the last decade in reaction to a rapid increase in STL labs. These policies focused on controlling access to the methamphetamine precursor chemicals ephedrine and pseudoephedrine and the relationship of such policies with actual STL seizure rates. Data include (a) primary legal research on state laws/regulations in all 50 states in effect as of October 1, 2005; and (b) STL seizure counts for 2004–2006. Results from random effects cross-sectional time-series …

12 Unnecessary Men: The Case For Eliminating Jury Trials In Drunk Driving Cases, Adam M. Gershowitz

Faculty Publications

Over the last few decades, states have imposed tougher punishments on drunk drivers. This Article argues that increasing punishments is counterproductive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months’ incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have found that the certainty of …

Special Challenges To 21st Century Lawyers: The Use And Misuse Of Technology, Fredric I. Lederer, Richard K. Herrmann, Jan Michelsen, Andrew Mertens

Faculty Publications

No abstract provided.

State Cooperation & The International Criminal Court: A Role For The United States?, Beth Van Schaack

Faculty Publications

This article appeared in a white paper from the American Society of International Law on the relationship between the United States and the International Criminal Court in the post-Kampala Review Conference period. This article is premised on the recognition that (1) the International Criminal Court is almost entirely dependent on State cooperation to effectuate its mandate to bring to justice individuals responsible for committing "the most serious crimes of concern to the international community as a whole" and (2) cooperation is central to the evolving relationship between the ICC and the United States.

Notwithstanding the rapprochement between the ICC and …

Deal Or No Deal: Why Courts Should Allow Defendants To Present Evidence That They Rejected Favorable Plea Bargains, Colin Miller

Faculty Publications

No abstract provided.

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

“Google Reigns Triumphant”?: Stemming The Tide Of Googlitis Via Collaborative, Situated Information Literacy Instruction, Carol A. Leibiger

Faculty Publications

Googlitis, the over-reliance on search engines for research and the resulting development of poor searching skills, is a recognized problem among today’s students. Google is not an effective research tool because, in addition to encouraging keyword searching at the expense of more powerful subject searching, it only accesses the Surface Web and is driven by advertising. American higher education unwittingly fosters the use of search engines in research by emphasizing results rather than process. Academic librarians emulate teaching faculty in their reliance on lectures, and their course-related instruction is limited in its effectiveness because it is constrained to one-shot, lecture-driven …

“Google Reigns Triumphant”?: Stemming The Tide Of Googlitis Via Collaborative, Situated Information Literacy Instruction, Carol A. Leibiger

Faculty Publications

Googlitis, the overreliance on search engines for research and the resulting development of poor searching skills, is a recognized problem among today’s students. Google is not an effective research tool because, in addition to encouraging keyword searching at the expense of more powerful subject searching, it only accesses the Surface Web and is driven by advertising. American higher education unwittingly fosters the use of search engines in research by emphasizing results rather than process. Academic librarians emulate teaching faculty in their reliance on lectures, and their course-related instruction is limited in its effectiveness because it is constrained to one-shot, lecture-driven …

The Turn To Legal Interpretation In Latin America, Jorge L. Esquirol

Faculty Publications

No abstract provided.

An Overview Of The Capital Jury Project For Military Practitioners: Jury Dynamics, Juror Confusion, And Juror Responsibility, Eric R. Carpenter

Faculty Publications

No abstract provided.

Beyond Rehabilitation: A New Theory Of Indeterminate Sentencing, Michael M. O'Hear

Faculty Publications

Indeterminate sentencing - that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board - fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release. Yet, sentencing remained indeterminate most places to varying degrees, and now …