Digital Commons Network^™

The Myth Of The Reliability Test, Brandon L. Garrett, M. Chris Fabricant

Faculty Scholarship

The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases and …

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

A Title Ix Conundrum: Are Campus Visitors Protected From Sexual Assault?, Hannah Brenner

Faculty Scholarship

Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. …

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

The Jury And Empire: The Insular Cases And The Anti-Jury Movement In The Gilded Age And Progressive Era, Andrew Kent

Faculty Scholarship

This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases-landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the …

Propping Up Corporate Crime With Corporate Character, Miriam H. Baer

Faculty Scholarship

No abstract provided.

The United States, Mexico, And The War On Drugs In The Trump Administration, James M. Cooper

Faculty Scholarship

This Article examines the war on drugs as persecuted by the United States and how it has been exported to Mexico. It also explores the increased efforts in the drugs war that the Trump administration, through the U.S. Department of Justice, is pursuing at a domestic level. Part I of this Article provides an outline of the dynamics in the quickly evolving and highly tense relationship between the United States and Mexico. Part II of this Article details the historical background of the U.S.-Mexico border region and demonstrates that the border has long been a contested site. Part III provides …

Beyond Strict Scrutiny: Forbidden Purpose And The "Civil Commitment" Power, Eric S. Janus

Faculty Scholarship

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as …

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

The Reliable Application Of Fingerprint Evidence, Brandon L. Garrett

Faculty Scholarship

In November 2017, a state appellate court did something almost unprecedented: It held that a trial judge made an error by admitting testimony on latent fingerprinting. In State v. McPhaul, the North Carolina appellate panel found error in admitting expert testimony, based on the lack of evidence that the expert reliably reached conclusions about the fingerprint evidence. The panel did not reverse the defendant's conviction, however, finding the error to be harmless. The ruling has broader significance for as-applied challenges to the forensic testimony commonly used in criminal cases, in which judges have often not carefully examined reliability either for …

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

No abstract provided.

Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo

Faculty Scholarship

The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if the …

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.

The Criminal Jury, Moral Judgments, And Political Representation, Youngjae Lee

Faculty Scholarship

Was the sexual act consensual? Did the defendant have a reasonable belief that he was in imminent danger of death by an attacker? Did the police use excessive force? Did the defendant act in a heinous or cruel manner? Did the defendant act with depraved indifference to human life? These are some of the questions that criminal juries encounter. Determinations of such questions involve a combination of factual and moral questions, both questions about what happened and questions about the evaluative significance of what happened. This feature of the criminal jury—that the jury routinely decides normative questions—is frequently noted but …

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins

Faculty Scholarship

No abstract provided.

Black, White, And Blue: Bias, Profiling, And Policing In The Age Of Black Lives Matter, Bridgette Baldwin

Faculty Scholarship

The United States has experienced a series of murders at the hands of the police in recent years, from Michael Brown to Tamir Rice to Eric Garner. The brutalization of Black people at the hands of the police is not new, but many are being introduced to the concept of police brutality through the channels of social media. Hashtags like #BlackLivesMatter and #TakeAKnee have revolutionized the conversation about racism and policing, bringing these incidents into mainstream media and common conversation. This movement has led to a deeper discussion on the following questions: (1) Why are Black people viewed as violent …

Infrastructural Regulation And The New Utilities, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe

Faculty Scholarship

The safeguarding and protection of children in society is crucial. Yet, children remain a vulnerable population; they are abused, neglected, trafficked, and exploited in numerous ways. In his new book, The One-Eyed Judge, Michael Ponsor, Senior United States District Court Judge for the District of Massachusetts, Western Division, who has presided over numerous child pornography cases, explores the complexities and legal implications of child pornography and exploitation.

Blackness As Disability?, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor

Faculty Scholarship

Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.

This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her film, …

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make …

Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg

Faculty Scholarship

This article examines the role played by biological and psychological factors associated with adolescent criminal activity in the context of justice policy reform and its critics. Scott, Duell, and Steinberg assert that risk-taking behavior in adolescence is not solely associated with biological and psychological immaturity, but rather exists as a dynamic interaction between those factors and the individual social context. This interactive model of juvenile offending supports the trend of treating juveniles differently than adults in the criminal justice system and clarifies how correctional programs are crucial in either undermining or promoting healthy development in adolescents.

Piracy And Due Process, Andrew Kent

Faculty Scholarship

No abstract provided.

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Faculty Scholarship

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to …

Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose

Faculty Scholarship

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …

Malleable Rationality, Stephanie Plamondon

Faculty Scholarship

In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their article famously proposes a departure from the neoclassical law and economics approach to legal analysis. Breaking from neoclassical law and economics’ rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, …