Digital Commons Network^™

The Legal Architecture Of Nation-Building: An Introduction, Charles H. Norchi

Faculty Publications

The fundamental question here is how to bring a population from a condition of hopelessness to one of self-governance, sustainable growth, and viable participation in the world community. The aim of this Symposium is to stimulate thinking about those questions by exploring whether there is a discernible legal architecture of nation-building.

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

Responsibility Status Of The Psychopath: On Moral Reasoning And Rational Self-Governance, Paul J. Litton

Faculty Publications

This article does not aim to describe the opposing views and argue for one over the other. Rather, I propose to deflate the debate as far as possible, attempting to reduce the area of disagreement. Meaningful disagreement exists only if there are, or could be, agents who have an undiminished capacity for practical reasoning or rational self-governance, yet truly are incapable of moral reasoning. However, I suggest that the capacity for rational self-governance entails the capacity to comprehend and act on moral considerations; thus, to the extent that an individual truly is incapable of grasping moral reasons, we should expect …

Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …

The Many Meanings Of "Politics" In Judicial Decision Making, Bradley W. Joondeph

Faculty Publications

This essay seeks to untangle the many possible meanings of "politics" in descriptions of judicial behavior. Part I sets out ten possible conceptions of the term, briefly discussing some examples and their empirical foundations. My goal is mostly descriptive (rather than normative), though it is apparent that some conceptions are more useful than others. In all events, claims about the political influences on judicial behavior must be specific about the phenomena they seek to describe. For given the many possible meanings of politics, accounts that lack such specificity are largely vacuous.

Part II builds on this discussion to make two …

Excerpts From Transcript Of Proceedings: Systemic Issues And The Media, Gerald F. Uelmen, Karen Smith, Henry Weinstein

Faculty Publications

No abstract provided.

Crimen Sine Lege: Judicial Lawmaking At The Intersection Of Law And Morals, Beth Van Schaack

Faculty Publications

One of the most fundamental defenses to a criminal prosecution is that of nullum crimen sine lege, nulla poena sine lege ("no crime without law, no punishment without law") (NCSL). Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, international criminal law (ICL) fails to fully implement this principle. The absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field with the innovations employed by the architects of the Nuremberg and Tokyo Tribunals. In the face of NCSL …

Understanding The Dean's Job, Barry Vickrey

Faculty Publications

No abstract provided.

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

In Whose "Best Interests"? – An International And Comparative Assessment Of Us Rules On Sentencing Of Juveniles, Jelani Jefferson Exum, John W. Head

Faculty Publications

According to numerous sources, both at the international level and within the USA, legal standards governing the treatment of children (commonly defined as persons under 18 years old)—including their treatment at the hands of the judicial system—should reflect an assessment of "the best interests of the child". An explicit announcement of this principle at the international level appears in the Convention on the Rights of the Child ("CRC"), which nearly all countries in the world have adopted. Article 37 of the CRC elaborates on the "best interests" principle, by prescribing six key standards national juvenile justice systems are to follow …

Jury Trial Innovations Across America: What We Are Teaching And Learning From Each Other, Gregory E. Mize, Paula Hannaford-Agor

Faculty Publications

Between 2004 and 2006 the National Center for State Courts conducted three related studies of jury practices in state and federal courts throughout the United States. Combined, the studies make up the State-of-the-States Sur­vey of Jury Improvement Efforts, a first-ever effort to survey the entire field of jury issues and practices from state and local jury reform and improvement efforts to in-court use of tools aimed at improving juror comprehension and participation-including note-taking, juror questions and providing jurors with written instructions. The resulting data sets are available in full online, allowing users to review their own states' practices in comparison …

Prosecuting Aggression, Noah Weisbord

Faculty Publications

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference.

Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …

Judging Vanessa: Norm Setting And Deviance In The Law Of Motherhood, Michelle Oberman

Faculty Publications

This article undertakes an ethnographic approach to the study of legal and societal norms surrounding motherhood in the U.S. It builds upon my more conventional legal and epidemiological work on maternal filicide by telling the stories, both legal and personal, of Vanessa, a woman I interviewed in the course of writing my most recent book, When Mothers Kill: Interviews from Prison. (NYU Press, 2008). In re-telling Vanessa's story, the current article exposes the limitations in the current binary classification of mothers as either good or bad. Of broader interest, I have elected to re-tell Vanessa's story by placing myself in …

The Politics Of Policing: Ensuring Stakeholder Collaboration In The Federal Reform Of Local Law Enforcement Agencies, Kami Chavis Simmons

Faculty Publications

Title 42 U.S. C. § 14141 authorizes the United States Department of Justice ("DOJ") to seek injunctive relief against local law enforcement agencies to eliminate a pattern or practice of unconstitutional conduct by these agencies. Rather than initiate lawsuits to reform these agencies, DOJ's current strategy is to negotiate reforms using a process that involves only DOJ representatives, municipality officials, and police management officials. While there are many benefits of negotiating the reforms, the current process excludes important stakeholders directly impacted by the reforms, including community members, who are the consumers of police services, and the rank-and-file police officers, whom …

Primer For U.S. Lawyers On European Union Government And Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Guidelines Simplification: Still An Urgent Priority Post-Booker, Michael M. O'Hear

Faculty Publications

No abstract provided.

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Fema Trailer Parks: Negative Perceptions And The Social Structure Of Avoidance, Matthew R. Lee, Frederick D. Weil, Edward S. Shihadeh

Faculty Publications

In recent years, negative media attention has fostered the impression that Federal Emergency Management Agency (FEMA) parks are social wastelands filled with criminal elements and other undesirables. FEMA parks have subsequently come to be viewed by some as a major threat to the safety and quality of life of the local communities in which they are situated. This analysis addresses attitudes toward FEMA trailer parks in Baton Rouge after Hurricane Katrina among Baton Rouge residents. Drawing on the Locally Undesirable Land Use/Not in My Backyard (LULU/NIMBY) literature, the contact hypothesis, and a broad paradigm of social status and social control, …

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …

Group Membership And Social Influence, Christopher Barnum, Barry N. Markovsky

Faculty Publications

Can people influence others solely by virtue of shared group membership? To address this and related questions, we offer a theory of group-mediated social influence and then test it in a standardized collective task setting. The theory capitalizes on uncertainty reduction principles found in two longstanding social psychological traditions: social identity theory and status characteristics theory. Our primary hypothesis was that in-group members would be more influential than out-group members. Results from the experiment indicate that in-group members were indeed more influential than out-group members. These findings supported a key derivation of our theory, and demonstrated that the integration accounts …

Revisiting Deviance And Its Relevance: A Conceptual History And Some Recent Applications In Discussions Of Violence And Institutional Social Control (Review Essay), William T. Armaline

Faculty Publications

No abstract provided.

The State-Of-The-States Survey Of Jury Improvement Efforts: A Compendium Report, Paula Hannaford-Agor, Gregory E. Mize, Nicole L. Waters

Faculty Publications

The State-of-the-States Survey is the cornerstone of a much larger initiative by the NCSC Center for Jury Studies – the National Program to Increase Citizen Participation in Jury Service (National Jury Program). The National Jury Program provides information and technical assistance to state courts about best practices in jury system management and trial procedures. Its ultimate goals are to assist courts to summons and impanel more representative juries; to manage their jury systems in an effective, efficient, and informative manner; to facilitate informed decision-making by trial jurors; to increase public trust and confidence in the jury system and in courts; …

On Misjudging And Its Implications For Criminal Defendants, Their Lawyers And The Criminal Justice System, Rodney J. Uphoff

Faculty Publications

Unquestionably, judges misjudge. Even the most arrogant of judges ultimately will concede that all judges err and, at some point, fail to apply governing law to the facts of the case accurately. Although all might agree that judges err, not all judges, lawyers, and scholars agree on how judges should behave or on what constitutes good judging. Not surprisingly, they also disagree about misjudging and the frequency with which it occurs.In his provocative article Misjudging, Chris Guthrie contends that “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.” Based on my observations and …

Crime And Punishment: Does Punishment Work?, David J. Cherrington

Faculty Publications

Most analyses of punishment seem to assume that it plays a major role in shaping the behavior of people, whether they are children, students, employees, or ordinary citizens in the community. Some people argue that there is no justification for the use of punishment in any setting, even childrearing. A bill debated in the 2007 California state legislature that would make spanking illegal appears to be a move in this direction. Others believe that there are times when punishment is the most effective and timely way to change behavior and without it homes, schools, organizations, and societies would disintegrate. Does …

The Administrative Judiciary's Independence Myth, James E. Moliterno

Faculty Publications

No abstract provided.

Guilty Pleas, Brady Disclosure, And Wrongful Convictions, Kevin C. Mcmunigal

Faculty Publications

The purpose of this article is to explore a connection between prosecutorial failures to disclose Brady material and wrongful convictions in the context of guilty pleas, the primary procedural vehicle our criminal justice system uses for securing criminal convictions.

Brady And Jailhouse Snitches, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Underlying Causes Of Divergent First Amendment Interpretations, Scott C. Idleman

Faculty Publications

No abstract provided.

The Second Chance Act And The Future Of Reentry Reform, Michael M. O'Hear

Faculty Publications

No abstract provided.