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Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon Jan 2016

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.


The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss Jan 2016

The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss

Faculty Scholarship

The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining …


Confronting Power In Public Law, Kate Andrias Jan 2016

Confronting Power In Public Law, Kate Andrias

Faculty Scholarship

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is – or should be – distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …


#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor Jan 2016

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Recorded encounters between women of color and police officers have been invaluable in bringing the reality of these interactions into the living rooms of otherwise unknowing Americans. The recordings are instrumental pieces of documentation and evidence, with the power to impact verdicts and galvanize the domestic struggle for human rights outside of the courtroom. They also are fraught with ethical issues that must be addressed by attorneys and activists hoping they effect change. Complexities such as implicit biases, editing and sourcing of videos, anonymity for those attacked and bystanders, and vicarious trauma on affected communities complicate use of violent police …


Law And Moral Dilemmas, Bert I. Huang Jan 2016

Law And Moral Dilemmas, Bert I. Huang

Faculty Scholarship

A runaway trolley rushes toward five people standing on the tracks, and it will surely kill them all. Fortunately, you can reach a switch that will turn the trolley onto a side track – but then you notice that one other person is standing there. Is it morally permissible for you to turn the trolley to that side track, where it will kill one person instead of five? Is it not only morally permissible, but even morally required? This classic thought experiment is a mainstay in the repertoire of law school hypotheticals, often raised alongside cases about cannibalism at sea, …


The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon Jan 2016

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …


Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg Jan 2016

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Faculty Scholarship

In the past decade, much attention has focused on developmental brain research and its implications for the regulation of crime. Public and policy interest has been directed primarily toward juveniles. In light of recent research, courts and legislatures increasingly have rejected the punitive response of the 1990s and embraced a developmental approach to young offenders. Of particular importance in propelling this trend has been the framework offered by the U.S. Supreme Court in a series of Eighth Amendment opinions that have rejected harsh adult sentences for juveniles. These decisions, supported by adolescent brain research, rested on two empirically based principles: …


Courting Abolition, Deborah W. Denno Jan 2016

Courting Abolition, Deborah W. Denno

Faculty Scholarship

This Review of Courting Death offers a different take on two of Professor Carol Steiker and Professor Jordan Steiker's major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty. The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge. In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous …


Prosecutorial Accountability 2.0, Bruce A. Green, Ellen Yaroshefsky Jan 2016

Prosecutorial Accountability 2.0, Bruce A. Green, Ellen Yaroshefsky

Faculty Scholarship

No abstract provided.


Should There Be A Specialized Ethics Code For Death-Penalty Defense Lawyers, Bruce A. Green Jan 2016

Should There Be A Specialized Ethics Code For Death-Penalty Defense Lawyers, Bruce A. Green

Faculty Scholarship

State ethics codes based on the ABA Model Rules of Professional Conduct address lawyers' work in advocacy but do not target lawyers' work in particular areas of advocacy or in other specialized practice areas. For more than forty years, critics have asserted that existing ethics rules are too superficial and should be supplemented by specialized rules. This article examines the utility of specialized ethics rules for one particular sub-specialty-death-penalty defense practice. After identifying arguments for and against a specialized ethics code for death-penalty cases, the article analyzes the arguments in the context of a particular ethics dilemma that some death-penalty …


Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Bruce A. Green, Samuel J. Levine Jan 2016

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Bruce A. Green, Samuel J. Levine

Faculty Scholarship

No abstract provided.


Agencies Obligation To Interpret The Statute, Aaron J. Saiger Jan 2016

Agencies Obligation To Interpret The Statute, Aaron J. Saiger

Faculty Scholarship

No abstract provided.


The Complicated Economics Of Prison Reform, John F. Pfaff Jan 2016

The Complicated Economics Of Prison Reform, John F. Pfaff

Faculty Scholarship

No abstract provided.


“What Is Old Is New Again”: Comments On Malcolm Feeley’S Tappan Lecture, Hadar Aviram Jan 2016

“What Is Old Is New Again”: Comments On Malcolm Feeley’S Tappan Lecture, Hadar Aviram

Faculty Scholarship

No abstract provided.


Cultural Factors And Ethical Integrity, Jessica Vapnek Jan 2016

Cultural Factors And Ethical Integrity, Jessica Vapnek

Faculty Scholarship

No abstract provided.


Glass Ceiling For Female Professionals, Executives, And Managerial Employees In Japan: 30th Anniversary Of The Eeao And Prime Minister Abe's Womenomics– Introduction To The Symposium Issue– Introduction To The Symposium Issue, Setsuo Miyazawa Jan 2016

Glass Ceiling For Female Professionals, Executives, And Managerial Employees In Japan: 30th Anniversary Of The Eeao And Prime Minister Abe's Womenomics– Introduction To The Symposium Issue– Introduction To The Symposium Issue, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.


Improving Access To Justice In Developing And Post-Conflict Countries: Practical Examples From The Field, Jessica Vapnek, Peter Boaz, Helga Turku Jan 2016

Improving Access To Justice In Developing And Post-Conflict Countries: Practical Examples From The Field, Jessica Vapnek, Peter Boaz, Helga Turku

Faculty Scholarship

No abstract provided.


Judicial Ethical Integrity: Challenges And Solutions, Morris A. Ratner Jan 2016

Judicial Ethical Integrity: Challenges And Solutions, Morris A. Ratner

Faculty Scholarship

No abstract provided.


Juvenile Life Without Parole In Law And Practice: Chronicling The Rapid Change Underway, John Mills, Anna M. Dorn, Amelia Courtney Hritz Jan 2016

Juvenile Life Without Parole In Law And Practice: Chronicling The Rapid Change Underway, John Mills, Anna M. Dorn, Amelia Courtney Hritz

Faculty Scholarship

This Article provides a comprehensive examination of juvenile life without parole ('"LWOP") both as a policy and in practice. Beginning in 2010, the U.S. Supreme Court has repeatedly held that the Eighth Amendment of the U.S. Constitution restricts the reach of JLWOP sentences, first prohibiting it for non-homicide offenses, then proscribing its mandatory application for any offense, and, in 2016, clarifying that it may only be imposed in the rare instance in which a juvenile's homicide demonstrates his or her "irreparable corruption. " The legislative responses to these cases have been to either abandon or restrict JLWOP's application. These legislative …


Judicial Ethical Integrity: Challenges And Solutions, Morris A. Ratner Jan 2016

Judicial Ethical Integrity: Challenges And Solutions, Morris A. Ratner

Faculty Scholarship

No abstract provided.


Law Enforcement As Political Question, Zachary S. Price Jan 2016

Law Enforcement As Political Question, Zachary S. Price

Faculty Scholarship

No abstract provided.


Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate Bloch, Jeffery Gould Jan 2016

Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate Bloch, Jeffery Gould

Faculty Scholarship

No abstract provided.


Beyond Legality: Understanding The Legitimacy Of Executive Action In Immigration Law, Ming Hsu Chen Jan 2016

Beyond Legality: Understanding The Legitimacy Of Executive Action In Immigration Law, Ming Hsu Chen

Faculty Scholarship

No abstract provided.


Restorative Justice From The Margins To The Center: The Emergence Of A New Norm In School Discipline, Thalia Gonzalez Jan 2016

Restorative Justice From The Margins To The Center: The Emergence Of A New Norm In School Discipline, Thalia Gonzalez

Faculty Scholarship

No abstract provided.


Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar Dec 2015

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.


Foreword: Legal Malpractice Is No Longer The Profession's Dirty Little Secret, Susan Saab Fortney Dec 2015

Foreword: Legal Malpractice Is No Longer The Profession's Dirty Little Secret, Susan Saab Fortney

Faculty Scholarship

In 1994, Professor Manuel R. Ramos published a law review article called, Legal Malpractice: The Profession's Dirty Little Secret. As suggested by the title, Professor Ramos argued that legal malpractice was a "taboo subject" that has been "ignored by the legal profession, law schools, mandatory continuing legal education ("CLE") programs, and even by scholarly and lay publications." Thirty years later, legal malpractice is an ever-present threat that lawyers cannot afford to ignore.


Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman Dec 2015

Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman

Faculty Scholarship

Racial minorities are disproportionately imprisoned in the United States. This disparity is unlikely to be due solely to differences in criminal behavior. Behavioral science research has documented that prosecutors harbor unconscious racial biases. These unconscious biases play a role whenever prosecutors exercise their broad discretion, such as in choosing what crimes to charge and when negotiating plea bargains. To reduce this risk of unconscious racial bias, we propose a policy change: Prosecutors should be blinded to the race of criminal defendants wherever feasible. This could be accomplished by removing information identifying or suggesting the defendant’s race from police dossiers shared …


Marriage Equality And The New Maternalism, Cynthia Godsoe Nov 2015

Marriage Equality And The New Maternalism, Cynthia Godsoe

Faculty Scholarship

No abstract provided.


Abandoned Criminal Attempts: An Economic Analysis, Murat C. Mungan Nov 2015

Abandoned Criminal Attempts: An Economic Analysis, Murat C. Mungan

Faculty Scholarship

An attempt is 'abandoned' if the criminal, despite having a chance to continue with his criminal plan, forgoes the opportunity to do so. A regime that makes abandonment a defense to criminal attempts provides an incentive to the offender to withdraw from his criminal conduct prior to completing the previously intended offense. However, the same regime may induce offenders to initiate criminal plans more often by reducing the expected costs associated with such plans. The former effect is called the marginal deterrence effect and the latter is called the ex-ante deterrence effect of the abandonment defense. This Article formalizes a …


Regulation Or Resistance: A Counter-Narrative Of Constitutional Criminal Procedure, Alice Ristroph Oct 2015

Regulation Or Resistance: A Counter-Narrative Of Constitutional Criminal Procedure, Alice Ristroph

Faculty Scholarship

No abstract provided.