Digital Commons Network^™

Review Essay: Excuse Theory Through A Liberal Lens, Richard C. Boldt

Faculty Scholarship

This essay reviews Excusing Crime, by Jeremy Horder, Reader in Criminal Law and Tutor in Law at Worcester College, Oxford. It describes Horder’s project, which is to build a complex taxonomy of criminal law excuse practices and to use that account of “why things are as they are” to argue, on the basis of his version of liberal theory, against “the restricted range” of excuses in the UK and elsewhere. By virtue of his appreciation that some, but not all, excuses contain justificatory elements, and given his insistence that pure claims of non-responsibility are not excuses, Horder has defined a …

The Theoretical Basis For Addressing Poverty Through Mixed-Income Development, Mark L. Joseph, Henry S. Webber

Faculty Scholarship

This article examines the theoretical foundations upon which the rationale for mixed-income development as a strategy to confront urban poverty is built. The authors focus on four propositions that draw from theories on social networks, social control, culture and behavior, and the political economy of place. They assess available evidence about the relative importance of the four theoretical propositions. They conclude that the most compelling propositions are those that suggest that some low-income residents may benefit from a higher quality of life through greater informal social control and access to higher quality services. They find less evidence that socioeconomic outcomes …

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Faculty Scholarship

If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, …

Public Safety And Criminal Justice, Kevin Washburn

Faculty Scholarship

Conference Transcript from The New Realism: The Next Generation of Scholarship in Federal Indian Law

Access To Justice, Costs, And Legal Aid, James P. George

Faculty Scholarship

If the ideal of justice is not pervasive in the United States, the issue of justice is-not so much in its rendition, but in its penetration of news, politics and entertainment. Current media issues include the death penalty--erroneous convictions and the lack of lawyers for appeals; tort reform--conflicting data on medical malpractice litigation and a perceived abuse of class actions; and the judiciary itself--judicial selection, political attacks on so-called "activist judges," and the sometimes hidden issue of court budgets. Within this fascination, the multiple problems in accessing justice are lost.

This article is excerpted from a report done for the …

Brief Amicus Curiae Of Professors Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, And Thomas Ulen In Support Of Respondents In Philip Morris Usa V. Mayola Williams, Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, Thomas Ulen

Faculty Scholarship

There is no dispute that the punitive damages award that was upheld by the Oregon Supreme Court in this case satisfies the most rigorous law and economic standards for rationality. The Court need not credit the analysis of the undersigned amici on this score; the fact that Petitioner’s own amici – most notably law and economics scholars A. Mitchell Polinsky and Steven Shavell – have been unable to find anything economically amiss in the decision below speaks volumes. To be sure, Professors Polinsky and Shavell have filed an amicus brief in support of Philip Morris in this case, just as …

The Logistical And Ethical Difficulties Of Informing Juveniles About The Consequences Of Adjudications, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard observes that the recent attention devoted to the collateral consequences of criminal convictions has overlooked the ways in which these consequences impact juvenile offenders. The article recognizes the emergent arguments for informing adult defendants of these consequences as part of the guilty plea or sentencing process, and argues that juvenile defendants should also be informed of the collateral consequences that attach to their adjudications. However, the article asserts that there are ethical and logistical questions unique to the juvenile justice process that would pose difficulties in conveying this information to juveniles. These issues (or …

The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard

Faculty Scholarship

No abstract provided.

A History Of Miranda And Why It Remains Vital Today, Roscoe C. Howard Jr, Lisa A. Rich

Faculty Scholarship

Custodial interrogations and how they are conducted in light of Miranda and its progeny are an integral part of the American criminal justice process and a necessary tool for criminal law enforcement, not merely a source of catchy phrases for today's popular television shows, for a very simple reason: The warnings set the ground rules for custodial interrogations and ensure that the interrogator and suspect are on a level playing field. A review of the case law surrounding the Miranda decision reveals that Miranda is a case that has encapsulated the nation's beliefs and, while subject to the ebbs and …

Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Desert, Democracy, And Sentencing Reform, Alice Ristroph

Faculty Scholarship

No abstract provided.

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …

Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal

Faculty Scholarship

No abstract provided.

Miranda, Please Report To The Principal's Office, Meg Penrose

Faculty Scholarship

The age of an alleged criminal offender undoubtedly affects his or her ability to appreciate the consequences of confessing to criminal behavior. Courts have long accepted that youth and inexperience impact an individual's ability to make a voluntary confession. Accordingly, this Article addresses whether Miranda v. Arizona--the seminal Fifth Amendment decision providing procedural rights to those enduring custodial interrogation--should apply to students interrogated by school officials during school hours. To answer this difficult question, this Article first provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school …

The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen H. Rothenberg, Alice Wang

Faculty Scholarship

Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your …

This Bridge Called Our Backs: An Introduction To “The Future Of Critical Race Feminism”, Angela Onwuachi-Willig

Faculty Scholarship

On April 1, 2005, the U.C. Davis Law Review hosted in its annual symposium an extremely distinguished group of scholars, who addressed central theories of Critical Race Feminism (“CRF”) in a daylong series of inspiring, thought-provoking, cutting-edge, and captivating presentations. The panelists at the symposium — in front of a packed room of students, professors, and local residents — delved into issues as diverse as the unique role of immigrant women in community economic development, societal failure to deal with domestic violence from a multidimensional perspective, the proposal of a contractual good faith claim based on Professors Devon Carbado and …

For The Benefit Of The Infant: An Introduction To The Symposium To End Child Abuse, Jon M. Garon

Faculty Scholarship

No abstract provided.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

Connecting Theory And Reality: Teaching Gideon And Indigent Defendants' Non-Right To Counsel At Bail, Douglas L. Colbert

Faculty Scholarship

In my article, I critique criminal procedure textbooks' and law professors' limited treatment of the constitutional right to counsel at the bail stage. While explaining that casebook authors usually praise the Supreme Court's landmark decisions in Gideon v. Wainwright and Argersinger v. Hamlin for guaranteeing trial counsel to indigent state defendants, I suggest that they shed minimal light on Gideon's irrelevance to most state defendants when they first appear before a judicial officer. Reviewing leading criminal procedure casebooks, I demonstrate that it is the rare text which informs law students that accused defendants should not expect to find a defense …

Parsing Personal Predilections: A Fresh Look At The Supreme Court’S Cruel And Unusual Death Penalty Jurisprudence, Susan Raeker-Jordan

Faculty Scholarship

No abstract provided.

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Faculty Scholarship

No abstract provided.

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

Faculty Scholarship

Can constructs of social meaning lead to actual criminal confinement? Can the intangible value ascribed to the maintenance of certain social norms lead to radically inefficient choices about resource allocation? The disproportionate criminal confinement of people with severe mental illnesses relative to non-mentally ill individuals suggests that social meanings related to mental illness can create legal and physical walls around this disfavored group. Responding to the non-violent mentally ill principally through the criminal system imposes at least 6 billion dollars in costs annually on the public, above any offsetting public safety and deterrence benefits, and imposes terrible human costs on …

Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein

Faculty Scholarship

No abstract provided.

Tribal Self-Determination At The Crossroads, Kevin Washburn

Faculty Scholarship

The tribal self-determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self-determination has been a successful federal approach to Indian affairs, no significant new self-determination program has been initiated at the congressional level in several years. This Article looks to the tribal self-determination initiative's past to gain insights about its future. It also briefly surveys existing tribal self-determination programs and concludes that far more work needs to be done to achieve tribal self-determination. Drawing on the author's broader work, it finds one …

Affirming Michigan’S Action: The Michigan Journal Of Race & Law's Response To Dr. Carcieri's Grutter V. Bollinger And Civil Disobedience, Adam Blumenkrantz, Jason Belmont Conn, Amrita Mallik, Michael Murphy

Faculty Scholarship

No abstract provided.

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Faculty Scholarship

Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …

Lessons Unlearned: Women Offenders, The Ethics Of Care, And The Promise Of Restorative Justice, Marie Failinger

Faculty Scholarship

The steep rise in female offenders since the 1960s has finally caused criminologists, lawyers, judges, and others to consider why they have not learned more about women offenders’ lives, in order to better understand and explain why they enter, and how they proceed through the criminal system. This article focuses on the reality that women’s relationality, and particularly their relationships with men in their lives, profoundly affect the behavior that lands them in the criminal justice system. This article argues that restorative justice, which is essentially grounded on an ethical understanding of crime and treats the offender as an interacting …

Instituting Innocence Reform: Wisconsin's New Governance Experiment, Kate Kruse

Faculty Scholarship

The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The …

Jurisdictional Implications In The Reduced Funding Of Lower Federal Courts, James P. George

Faculty Scholarship

This article argues two related propositions. First, if Congress were to eliminate all funding for lower federal courts, its constitutional authority to regulate those courts would become as meaningless as the empty courthouses. Second, Congress breaches its duty to furnish a forum at a point short of full defunding, and with that breach, Congress's regulatory power over private civil disputes otherwise litigable in state courts--preempted and removable state law claims--becomes constitutionally invalid. The first fact setting of full defunding is hypothetical; the second has been underway for several years.