Digital Commons Network^™

Civil Legal Needs Of Individuals In Drug Treatment, Ellen M. Weber, Rachel C. Grunberger, Kevin E. O'Grady, Amelia M. Arria

Faculty Scholarship

No abstract provided.

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

Reconsidering The Commission’S Treatment Of Tribal Courts, Kevin Washburn

Faculty Scholarship

Since the U.S. Sentencing Commission first enacted the federal Sentencing Guidelines, the Guidelines have treated tribal courts in a manner that is impossible to reconcile with other modem federal policies of respect for tribal self-determination and self-governance. In refusing to count tribal convictions for purposes of routine calculation of criminal history, the Commission has disrespected tribal courts. The Commission's tribal courts policy is anachronistic and out of step with modem efforts to support tribal courts. The Commission should amend the guidelines to reflect the principle that misdemeanor convictions from tribal courts are entitled to the same level of respect as …

An Introduction, Randy Lee

Faculty Scholarship

No abstract provided.

The Worst Way Of Selecting Judges—Except All The Others That Have Been Tried, Michael R. Dimino

Faculty Scholarship

No abstract provided.

Introduction: Three Perspectives On Criminal Justice, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Differentiating Types Of Domestic Violence: Implications For Child Custody, Nancy Ver Steegh

Faculty Scholarship

This article examines child custody determinations through the lens of a domestic violence typology. The resulting analysis (1) reconciles competing viewpoints and contradictory evidence about domestic violence; (2) matches families with appropriate child custody court procedures and services such as parent education, mediation, supervised visitation and parent coordination; and (3) exposes serious deficiencies in current domestic violence childcustody statutes.

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, …

Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope

Faculty Scholarship

Restricting a person's substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person.

In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve …

Can Good Judges Be Good Politician? Judicial Elections From A Virtue Ethics Approach, Marie Failinger

Faculty Scholarship

In this article, the author argues that it is only possible to determine whether judges are likely to be good judges if we understand the practice of judging and the telos of justice toward which its aims, and that elections cannot help voters determine what qualities are necessary in judges and for what reasons. Moreover, I argue that traditional elections require virtues in politicians which are not often found in good (virtuous) judges, making them an unsuitable way of selecting candidates.

Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal

Faculty Scholarship

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the …

Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres

Faculty Scholarship

In instances of collective violence — apartheid in South Africa, mass killings in Rwanda, and other crimes against humanity such as slavery — what response provides justice? How can justice be achieved under such a system? Legal justice through prosecution would be unjust. This opens the possibility of nonprosecution alternatives involving forgiveness. Hélène Cixous’s play about forgiveness as an alternative to criminal prosecution, The Perjured City: Or, the Awakening of the Furies, was written in response to an actual case of failed justice in France, known as the Bad Blood Scandal. The play provides a model of forgiveness and a …

Innocence, Harmless Error, And Federal Wrongful Conviction Law, Brandon L. Garrett

Faculty Scholarship

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth …

Theory Of Punitive Damages, Benjamin C. Zipursky

Faculty Scholarship

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of …

The New Textualists' New Text, Lawrence Solan

Faculty Scholarship

No abstract provided.

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Co-Teaching International Criminal Law: New Strategies To Meet The Challenges Of A New Course, Stacy Caplow, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Constitutional Right Against Excessive Punishment, The, Youngjae Lee

Faculty Scholarship

When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning …

Decline And Fall Of Legislative History - Patterns Of Supreme Court Reliance In The Burger And Rehnquist Eras, The, James J. Brudney, Corey Distlear

Faculty Scholarship

Reliance on legislative history in the Court's majority opinions has fallen from nearly 50 percent during the Burger era to less than 30 percent since 1985.

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

Faculty Scholarship

I argue in this article that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. I first summarize some of the advantages and disadvantages of various decision rules as a matter of general democratic theory. I next outline the arguments made for various decision rules in the context of the criminal jury. Finally, I offer an argument for supermajoritarian requirements for conviction rooted in our general constitutional commitment to supermajoritarianism. I present a coherentist account for …

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …

Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch

Faculty Scholarship

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state …

The Accelerating Degradation Of American Criminal Codes, Michael T. Cahill, Paul H. Robinson

Faculty Scholarship

No abstract provided.

Collapsing Spheres: Joint Terrorism Task Forces, Federalism, And The War On Terror, Susan Herman

Faculty Scholarship

No abstract provided.

Criminal Law In A Post-Freudian World, Deborah W. Denno

Faculty Scholarship

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of …

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict rather than collaboration between the state and families. In lieu of a solely rights-based …

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan

Faculty Scholarship

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

Executive Power And The War On Terror, Norman C. Bay

Faculty Scholarship

Two important paradigm shifts have occurred in the war on terror. First, the United States has treated terrorism as a military issue, not a law enforcement problem. Second, the United States has centralized its intelligence apparatus under the direction of the newly-created Director of National Intelligence and lowered the wall that separated external security or foreign intelligence activity from internal security or domestic law enforcement. In tandem, these changes are of historic dimension. They also occur against a backdrop in modern times in which the executive branch has steadily accumulated power. In pursuit of the war on terror, we have …