Digital Commons Network^™

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Plenary Power Preemption, Kerry Abrams

Faculty Scholarship

No abstract provided.

Neuroscientists In Court, David L. Faigman, Owen D. Jones, Anthony D. Wagner, Marcus E. Raichle

Faculty Scholarship

No abstract provided.

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

Faculty Scholarship

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Underneath Her Pantsuit: A Reflection On Hanna Rosin's The End Of Men, Aziza Ahmed

Faculty Scholarship

In her book, The End of Men, ¹ Hanna Rosin argues that women have “surpassed” men. This new reality necessitates a reevaluation of marriage, family, sex, and gender roles.² To further her claim, Rosin dedicates a chapter of her book to the topic of violence committed by women. She argues that women are becoming more violent³ :

The new [trope] taps into a fear that as they gain more power, women will use violence and their new specialized skills to get what they want. Singular and exotic though these cases may be, they raise the broader unsettling possibility …

Introduction To The Special Issue On The Arab Spring, Ayodeji Kamau Perrin

Faculty Scholarship

What quickly became known as the "Arab Spring" is a series of protest movements, reform movements, and revolutions (some bloody and some relatively "bloodless") that has been ongoing for more than two years in the majority-Muslim world of the Middle East and North Africa. Arab Spring recalls both the European Revolutions of 1848, dubbed the "Springtime of the Peoples," as well as the Prague Spring of 1968. And the events have drawn comparisons to the post-Soviet revolutions of 1989. The compilation of essays contained in this Special Issue of the Journal of International Law reflects on these events from a …

Prescriptions For Ethical Blindness: Improving Advocacy For Indigent Defendants In Criminal Cases, Tigran W. Eldred

Faculty Scholarship

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-­known: severe underfunding, excessive workloads, and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this Article focuses on the psychology of ethical decision making. Relying on research that reveals the subtle ways that self-­interest can cause people to overlook unethical behavior, it argues …

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven Arrigg Koh

Faculty Scholarship

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures—the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence.

This Article identifies this gap in the literature—the prison location omission—and fills it from three different vantage points:

(1) U.S. procedural provisions governing prison designation;

(2) international procedural provisions governing prison designation; and

(3) the relationship between imprisonment and broader theories of criminal punishment.

Through comparison of …

Jewish Identity And Judging: Seymour Simon Of Illinois, Jack M. Beermann

Faculty Scholarship

Illinois Supreme Court Justice Seymour F. Simon (1915-2006) would have filled the stereotype of the righteous man in Jewish lore. He was a man of principle, communicated those principles in an insistent tone to anyone who would listen, worked hard to further the cause of justice and earned a reputation as a committed public servant. Justice Simon served as Justice of the Illinois Supreme Court from 1980-1988 after having served on the Illinois Appellate Court from 1974-1980. Before winning election to the courts, Justice Simon was a politician, serving, inter alia, as an alderman in the City of Chicago and …

Maryland V. King: Terry V. Ohio Redux, Tracey Maclin

Faculty Scholarship

In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene.

In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government.

Although Justice Kennedy's opinion suggests …

Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle K. Citron, David Gray

Faculty Scholarship

In his insightful article, "The Dangers of Surveillance," 126 Harvard Law Review 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work; we, therefore, recommend that judges, legislators, and executives focus, instead, on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …

Ineffective Assistance Of Library: The Failings And The Future Of Prison Law Libraries, Jonathan Abel

Faculty Scholarship

The prison law library has long been a potent symbol of the inmate's right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research …

The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, James S. Liebman, Shawn Blackburn, David Mattern, Jonathan Waisnor

Faculty Scholarship

Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the …

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population …

Intersectionality: Mapping The Movements Of A Theory, Devon Carbado, Kimberlé W. Crenshaw, Vicki M. Mays, Barbara Tomlinson

Faculty Scholarship

Very few theories have generated the kind of interdisciplinary and global engagement that marks the intellectual history of intersectionality. Yet, there has been very little effort to reflect upon precisely how intersectionality has moved across time, disciplines, issues, and geographic and national boundaries. Our failure to attend to intersectionality’s movement has limited our ability to see the theory in places in which it is already doing work and to imagine other places to which the theory might be taken. Addressing these questions, this special issue reflects upon the genesis of intersectionality, engages some of the debates about its scope and …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Faculty Scholarship

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and – most relevant here – catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before …

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …

Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel

Faculty Scholarship

The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …

Federalism And The Eighth Amendment, Youngjae Lee

Faculty Scholarship

How many “cruel and unusual punishments” clauses are there? Michael Mannheimer, in his article, Cruel and Unusual Federal Punishments, argues that there are two—one for the federal government and one for state governments.1 Mannheimer contends that courts have been unduly neglecting the former and mistakenly applying the latter to the federal government without adequate reflection.2 Mannheimer further argues that the Eighth Amendment is primarily a device to promote state sovereignty and that we should accordingly read it as requiring that federal punishments be no more severe than state punishments for equivalent crimes.3 I cannot do justice in this brief Response …

Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green

Faculty Scholarship

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the …

Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff

Faculty Scholarship

This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …

Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson

Faculty Scholarship

The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

What Is Philosophy Of Criminal Law?, Youngjae Lee

Faculty Scholarship

No abstract provided.

Representation For The Accused: Haiti's Thirst And A Role For Clinical Legal Education, Kate Bloch

Faculty Scholarship

No abstract provided.

Paved With Good Intentions: Sentencing Alternatives From Neuroscience And The Policy Of Problem-Solving Courts, Emily R. Murphy

Faculty Scholarship

No abstract provided.

Check, Pleas: Toward A Jurisprudence Of Defense Ethics In Plea Bargaining, Hadar Aviram, Deanna Dyer, S. C. Thomas

Faculty Scholarship

No abstract provided.

Death Row Economics The Rise Of Fiscally Prudent Anti Death Penalty Activism, Hadar Aviram, Ryan Newby

Faculty Scholarship

No abstract provided.

Germany V. Italy And The Limits Of Horizontal Enforcement Some Reflections From A United States Perspective, Chimene Keitner

Faculty Scholarship

No abstract provided.