Digital Commons Network^™

When Something Is Not Quite Right: Considerations For Advising A Client To Seek Mental Health Treatment, Carol M. Suzuki

Faculty Scholarship

This Article explores rules of professional responsibility, theory, and reasoning processes related to advising clients to seek mental health treatment. Furthermore, this Article looks at cultural and financial aspects of treatment, and concludes with recommendations on how a lawyer should counsel her client once she determines that mental health treatment is appropriate. Part I discusses humanitarian reasons that support a lawyer's decision to advise her client to seek mental health treatment. Part II of this Article discusses rules of professional conduct relevant to advising a client to seek mental health treatment. Part III sets out a framework for considering how …

2007-2008 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

No abstract provided.

Respect And Resistance In Punishment Theory, Alice Ristroph

Faculty Scholarship

No abstract provided.

Introduction: Symposium On Remedies For Exonerated Prisoners, Jack M. Beermann

Faculty Scholarship

Exoneration of wrongfully convicted prisoners is not a new thing, but it seems to be more common with advances in the availability and utility of DNA evidence. Given the number of exonerations that have occurred in recent years, it is increasingly difficult to dismiss inmates’ ubiquitous claims of innocence. Is it still a safe assumption that the vast majority of claims of innocence are false? Do we trust that post-conviction and appellate procedures will sort the wheat from the chaff?

Regardless of how we answer the questions raised above, there is one question society must answer—how should the wrongfully convicted …

American Civil Religion: An Idea Whose Time Is Past, Frederick Mark Gedicks

Faculty Scholarship

From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a 'civil religion' that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States.

Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the …

Physicians Who Break The Law, Diane E. Hoffmann

Faculty Scholarship

This paper takes as its starting point a recent article by Prof. Sandra Johnson, Regulating Physician Behavior: Taking Doctors “Bad Law” Claims Seriously. In the article, Johnson focuses on doctors who comply with the law despite their belief that the law is “bad”, i.e., causes them to behave in ways that are harmful to their patients. In Physicians Who Break the Law, I explore cases where physicians break the law claiming that it is “bad”. In this exploration, I focus on two areas of physicians’ lawbreaking: (1) violations of business-related laws, in particular, insurance fraud; and (2) violations of laws …

Reframing Domestic Violence Law And Policy: An Anti-Essentialist Proposal, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

We Have Met The Special Interests, And We Are They, Michael R. Dimino

Faculty Scholarship

No abstract provided.

How To Improve Empirical Desert, Adam Kolber

Faculty Scholarship

No abstract provided.

Improving The Odds Of Government Accountability In The Disaster-Prone Era: Using The 9/11 Fund Factors To Remedy The Problem Of Toxic Katrina Trailers, Olympia Duhart

Faculty Scholarship

This article analyzes the dangers surrounding the toxicity levels in the trailers issued to Katrina survivors by FEMA, and identifies serious medical complications stemming from the temporary homes. Lack of government oversight in the process led to the distribution of formaldehyde-laced trailers that cost the government more than $2 billion and continue to poison residents years after the storm. Furthermore, the failures connected to disaster relief are even more disturbing in this disaster-prone era. More importantly, this paper also proposes the creation of a Toxic Trailer Fund to compensate residents of toxic FEMA trailers. Using the factors implicitly established by …

Insincere And Involuntary Public Apologies, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Treaties As "Part Of Our Law", Ernest A. Young

Faculty Scholarship

No abstract provided.

Evaluating The Consequences Of Calibrated Sentencing: A Response To Professor Kolber, Miriam H. Baer

Faculty Scholarship

This is a Response to Adam Kolber's essay, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). Kobler criticizes courts for failing to take into account subjective experience of punishment when imposing sentences for criminal conduct. Kolber contends that the failure to calibrate punishment to reflect subjective experience undermines both retributivist and consequentialist arguments for punishment.

This Response grapples with the consequentialist implications of Kolber's argument. Specifically, it argues that calibrated sentencing may be far less desirable than its logical alternative, calibrated policing. Indeed, many would say that we already distribute police resources based on our estimation of …

Governing Corporate Compliance, Miriam H. Baer

Faculty Scholarship

In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number …

The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner

Faculty Scholarship

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise …

Clara Shortridge Foltz Professorship Acceptance, Barbara Cox

Faculty Scholarship

No abstract provided.

A Response To The Critics Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

This essay responds to critics of corporate liability and to the claim that elimination or limitation of such liability should be a priority for law reform. It discusses four points. First, imposing criminal liability on corporations makes sense, because corporations are not mere “fictional” entities. Rather, corporations are very real – and enormously powerful – actors whose conduct often causes very significant harms both to individuals and to society as a whole. Second, in evaluating the priorities for law reform it is critical to recognize that most of the problems with corporate liability are endemic to U.S. criminal law, rather …

Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin

Faculty Scholarship

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through …

Wanting The Truth: Comparing Prosecutions Of Investigative And Institutional Deception, Lisa Kern Griffin

Faculty Scholarship

Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses—including the standards for prosecution, the perceived victim, and the purposes of bringing charges—suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in …

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov

Faculty Scholarship

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

Grading Arson, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Due Process And Targeted Killing Of Terrorists, Richard Murphy, Afsheen John Radsan

Faculty Scholarship

"Targeted killing" is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. States have used this tool, secretly or not, throughout history. In recent years, targeted killing has generated new controversy as two states in particular-Israel and the United States-have struggled against opponents embedded in civilian populations. As a matter of express policy, Israel engages in targeted killing of persons it deems members of terrorist organizations involved in attacks on Israel. The United States, less expressly, has adopted a similar policy against al Qaeda-particularly in the border areas of Afghanistan and Pakistan, where the …

Change Versus Continuity At Obama’S Cia, Afsheen John Radsan

Faculty Scholarship

Sweeping change is necessary at the Central Intelligence Agency (CIA). During President Barack Obama‘s transition into office, change should go deeper than usual between administrations. To restore the trust of the American people and to regain the confidence of the international community, the CIA needs to do better. I will outline three areas for legislative change relating to my former employer, the CIA. The first proposal is to have a national security court for the trials of terrorists. The second is to permit the CIA to continue to have an exception to pursue aggressive interrogations with a lot of oversight …

Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Faculty Scholarship

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …

What We Can Learn About Appeals From Mr. Tillman's Case: More Lessons From Another Dna Exoneration, Giovanna Shay

Faculty Scholarship

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman's case is a paradigmatic DNA exoneration-involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This Article uses the published opinions affirming Mr. Tillman's conviction-particularly his direct appeal to the Connecticut Supreme Court, and his appeal from the state habeas proceeding-to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman's exoneration reveal any …

2009 Survey Of Books Related To Women And The Law: Review: Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

The Author reviews journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) which presents an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars …

Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

Journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) is an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars furthers the goal of …

The Subjective Experience Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.