Digital Commons Network^™

Applying Apprendi To The Federal Sentencing Guidelines: You Say You Want A Revolution?, Susan Herman

Faculty Scholarship

No abstract provided.

Notations For Subsequent Histories In Civil Cases, James Hambleton

Faculty Scholarship

Subsequent histories have been apart of Texas case citation since the turn of the century. For most of that time, the information for subsequent histories was gleaned from paper sources, including the Texas Subsequent History Tables and Texas Shepard's Citations. The subsequent history information available to practitioners from these sources was limited by the controlled set of notations used by legal publishers. With the advent of electronic sources, this set of notations has become inadequate. This article traces the history of civil case notations for subsequent history, explains why this system is no longer adequate, and proposes a revised system …

The Selective Deportation Of Same-Gender Partners: In Search Of The "Rara Avis", Victor C. Romero

Faculty Scholarship

This article seeks to explore the possibility that a selective deportation of a same-gender partner who has overstayed her visa constitutes an outrageous case under the AADC test. Its modest goal is to discourage the INS from ever pursuing such a strategy, knowing that there are probably many who believe that same-gender overstays, even if civilly united in Vermont, are not the ideal candidates for "suspect class" status under U.S. constitutional law. That notwithstanding, common sense and sound doctrine suggest that, despite the many anti-gay and anti-immigrant decisions handed down over the last twenty years, the Court will not hesitate …

Overlegalizing Human Rights: International Relations Theory And The Commonwealth Caribbean Backlash Against Human Rights Regimes, Laurence R. Helfer

Faculty Scholarship

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treaty's substantive rules or its review procedures are too constraining of sovereignty, causing governments to engage in acts of non-compliance or even to denounce the treaty. The concept of legalization and its potential excesses, although unfamiliar to many legal scholars, has begun to be explored by international relations theorists analyzing the effects of legal rules in changing state behavior. This article bridges the gap between international legal scholarship and international relations theory by exploring a recent case study of overlegalization. It seeks to understand …

Crime And Consciousness: Science And Involuntary Acts , Deborah W. Denno

Faculty Scholarship

This Article confronts this clash between legal and scientific perspectives on consciousness by proposing new ways to structure the voluntary act requirement so that it incorporates the insights of modern science on the human mind. Part I examines the criminal law's voluntary act requirement, particularly in the context of the MPC's influential provision, which reflects the law and psychology of the era in which the MPC was originally developed--the 1950s. Part II analyzes the new science of “consciousness,” a term that typically refers to the sum of a person's thoughts, feelings, and sensations, as well as the everyday circumstances and …

Webwatch—Legal Self-Help, Pat Newcombe

Faculty Scholarship

No abstract provided.

Should I Have Learned To Cook? Interviews With Women Lawyers Juggling Multiple Roles, Jackie Slotkin

Faculty Scholarship

No abstract provided.

Don't Believe Everything You Think: Cognitive Bias In Legal Decision Making, Ian Weinstein

Faculty Scholarship

This article discusses the role of cognitive bias in legal decision making. Drawing on research in cognitive science and law, it explores the impact of cognitive bias on both lawyers and clients. These often subtle mental biases can lead to pervasive errors in decision making by causing us to ignore important information and make inaccurate predictions. They may lead a client to underestimate the risk of litigation. They may also lead a lawyer to miscategorize a client's value choice as a misjudgement of fact. The article offers illustrative stories of the impact of bias on both client and lawyer and …

Retributive Justice: Its Social Context, Neil Vidmar

Faculty Scholarship

Until relatively recently, social psychologists have given less attention to retributive justice than to other forms of justice, such as distributive and procedural justice. Although interest in retributive justice is increasing, the fact remains that social psychological research on retribution has tended to ignore, or at least downplay, the insights of sociologists in deference to an approach that examines how individuals respond to deviant acts. Without rejecting psycholgical analyses, this chpater draws attention to the social context and social consequences of retributive justice. Group dynamics are at play in a wide array of settings in which people respond to rule …

Constructing The Practices Of Accountability And Professionalism: A Comment On In The Interests Of Justice, Susan Sturm

Faculty Scholarship

In the Interests of Justice: Reforming the Legal Profession lives up to its ambitious title. Deborah Rhode comprehensively surveys the structural problems confronting the legal profession, from its subscription to the "sporting theory of justice" to its preoccupation with profit. The book also lays bare the failure of legal education and the professional regulatory system to confront the roots of these structural problems.

I must confess that reading the book felt like a whirlwind tour of the legal profession's inevitable problems. In part, this perception grew out of the sheer range of economic, institutional, and structural factors contributing to the …

The Impossible Dream Come True: A Criminal Law Professor Becomes Juror #7, Stacy Caplow

Faculty Scholarship

No abstract provided.

Recognizing The Interdependence Of Rights In The Antidiscrimination Context Through The World Conference Against Racism , Catherine Powell, Jennifer H. Lee

Faculty Scholarship

This background paper assesses the importance of integrating gender into efforts to address racial discrimination and related intolerance in the WCAR process. While this background paper primarily focuses on racial discrimination, the analysis may be applied to xenophobia and related intolerance where these experiences are "raced" experiences. Addressing these forms of intolerance in a comprehensive manner requires unmasking the ways in which race intersects with gender and other status. A gender analysis is needed to make racism more fully visible, because "racial discrimination does not always affect men and women equally or in the same way." Women often experience compounded …

The Future Of Civil Rights: A Dialogue, Margaret E. Montoya

Faculty Scholarship

Eight social science, humanities, and legal scholars discuss a wide range of perspectives on civil rights (edited by John Paul Ryan). The conversation traverses civil rights stories in the U.S. and abroad since 1968, the relationships between immigration and civil rights, the enforcement of civil rights and the role of the courts, and the impact of September 11 on civil rights in the future. Co-authored with John Paul Ryan, Angelo Ancheta, Erik Bleich, Tim Borstelmann, Gloria Browne-Marshall, Chai Feldblum, Anita Hodgkiss, & John D. Skrentny

Interpreting U.S. Treaties In Light Of Human Rights Values, Lori Fisler Damrosch

Faculty Scholarship

International treaty law occupies a more secure place in U.S. constitutional text than customary international law. Treaties, we know, are the “supreme law of the land” under Article VI of the Constitution and are routinely applied both in state courts and in federal courts under Article III. So the “awkward relationship” to which I will address myself is how U.S. courts should determine the meaning of an international treaty to which the United States is bound, when the parties involved in court have different views on the substance of the obligation that the United States has undertaken. Thus my general …

How To Construct An Underclass, Or How The War On Drugs Became A War On Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The war on drugs has spawned a second front-a war on education. The casualties of this war are all poor or lower-income people who cannot afford to buy a private education. This article details the consequences of this other war, and explores some legislative and litigation strategies for reclaiming educational opportunity for all Americans. First, however, we must set out in more detail the laws and policies that now deploy educational privation as punishment in public schools, colleges, and prisons.

A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Faculty Scholarship

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system.

Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors.

Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were …

Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman

Faculty Scholarship

Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.

There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …

Racial Profiling Under Attack, Samuel R. Gross, Debra A. Livingston

Faculty Scholarship

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department of Justice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence – a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, …

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited …

Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel C. Richman

Faculty Scholarship

One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken.

What's interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think "outside of the box" (which usually means proposing something interesting but really wrong or dangerous), I'd …

Policing Disorder: Can We Reduce Serious Crime By Punishing Petty Offenses?, Bernard E. Harcourt

Faculty Scholarship

Punishment in these late modem times is marked by two striking developments. The first is a stunning increase in the number of persons incarcerated. Federal and state prison populations nationwide have increased from less than 200,000 in 1970 to more than 1,300,000 in 2000, with another 600,000 persons held in local jails.1 Today, approximately 2 million men and women are incarcerated in prisons and jails in this country.The intellectual rationale for this increase is provided by "incapacitation theory''-the idea that a hardcore 6 percent of youths and young adults are responsible for the majority of crime and that locking up …

Comments On The Symposium: Expanding Research Opportunities On The Federal Criminal Justice System, Daniel C. Richman

Faculty Scholarship

A full understanding of how the federal enforcement bureaucracy will elude us without a rich understanding of what makes prosecutors (or agents) tick. However, I suspect that the best way to reach that goal is not to start with this ultimate question. After all, to look closer to home, what do professors “maximize” when they grade papers? Progress is much more likely to be made if we follow Jim Eisenstein and focus on, first, identifying the most salient features of the bureaucratic environment, and, second, getting a handle on their relative influences.

The Professional Responsibilities Of The Public Official's Lawyer: A Case Study From The Clinton Era, William H. Simon

Faculty Scholarship

No one has sought more persistently to focus our attention on the relation of professional duty and personal integrity than Thomas Shaffer. Shaffer's work is the most powerful defense of integrity in the legal ethics literature, and it offers the most useful set of strategies for vindicating integrity in law practice. This Essay was conceived in the spirit of Shaffer's distinctive preoccupations and commitments, and it is a pleasure to present it in an issue dedicated to him.

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind …

The Preventive Effects Of Arrest On Intimate Partner Violence: Research, Policy And Theory, Christopher D. Maxwell, Joel H. Garner, Jeffrey A. Fagan

Faculty Scholarship

This research addresses the limitations of prior analyses and reviews of five experiments testing for the specific deterrent effect of arrest on intimate partner violence by applying to individual level data consistent eligibility criteria, common independent and outcome measures, and appropriate statistical tests. Based on 4,032 cases involving adult males who assaulted their female intimate partners, multivariate regression analyses show consistent but modest reductions in subsequent offenses targeting the original victim that is attributable to arresting the suspect. Although the reductions attributable to arrest are similar across all five studies, other factors, such as the suspect's prior arrest record, are …

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of …

Racial Justice: Moral Or Political?, Kendall Thomas

Faculty Scholarship

Nearly one hundred years ago, W.E.B. DuBois predicted that the problem of the 20th century would be the problem of the color line. Were he writing today, DuBois might well conclude that in the U.S., the problem of the coming century will be the problem of the color-bind. Although Americans arguably remain "the most 'race-conscious' people on earth," our national conversation about "race" now stands at an impasse. Our ways of talking, or refusing to talk, about race increasingly speak past the racialized dilemmas of educational equity, affirmative action, poverty, welfare reform, housing, lending, labor and employment discrimination, health …

Habeas Review Of Perfunctory State Court Decisions On The Merits, Scott Dodson

Faculty Scholarship

No abstract provided.