Digital Commons Network^™

Access To Essential Medicines In African Countries: An Introduction, Peter G. Danchin, Diane Hoffmann

Faculty Scholarship

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

From Out To In: The Opportunity And Need For Clinical Law Programs To Effectively Serve Low-Income Lgbt Individuals, Sarah Steadman

Faculty Scholarship

Although the recent legalization of same-sex marriage in the U.S. is heartening for lesbians and gays, the resulting discriminatory legislative backlash against the LGBT population shows that this community continues to be marginalized and at risk. Over two hundred anti-LGBT bills have been introduced in state legislatures since January 2016. North Carolina recently passed anti-LGBT legislation that eliminated and prohibits LGBT anti-discrimination protections, and bars transgender individuals from using gender congruent public bathrooms. One result of recent and historical discrimination is LGBT individual's newfound and pre-existing fears of encountering anti-LGBT bias when seeking legal services, even as recent developments have …

Do Religious Exemptions Save?, Maimon Schwarzschild

Faculty Scholarship

No abstract provided.

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Rare As Hens' Teeth: The New Geography Of The American Death Penalty, Brandon L. Garrett

Faculty Scholarship

Today, only a few dozen scattered counties actually impose death sentences, supporting the death penalty’s arbitrariness.

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Faculty Scholarship

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Promoting Mental Health And Preventing Mental Illness In General Practice, Kurt C. Stange

Faculty Scholarship

This paper calls for the routine integration of mental health promotion and prevention into UK General Practice in order to reduce the burden of mental and physical disorders and the ensuing pressure on General Practice. The proposals & the resulting document (https://ethicscharity. files.wordpress.com/2015/09/rcgp_keymsg_150925_v5.pdf) arise from an expert ‘Think Tank’ convened by the London Journal of Primary Care, Educational Trust for Health Improvement through Cognitive Strategies (ETHICS Foundation) and the Royal College of General Practitioners. It makes 12 recommendations for General Practice: (1) Mental health promotion and prevention are too important to wait. (2) Work with your community to map risk …

Elections, Ideology, And Turnover In The U.S. Federal Government, Alexander D. Bolton, John De Figueiredo, David E. Lewis

Faculty Scholarship

A defining feature of public sector employment is the regular change in elected leadership. Yet, we know little about how elections influence public sector careers. We describe how elections alter policy outputs and disrupt the influence of civil servants over agency decisions. These changes shape the career choices of employees motivated by policy, influence, and wages. Using new Office of Personnel Management data on the careers of millions of federal employees between 1988 and 2011, we evaluate how elections influence employee turnover decisions. We find that presidential elections increase departure rates of career senior employees, particularly in agencies with divergent …

For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

Sleuthing Scientific Evidence Information On The Internet, Diana Botluk

Faculty Scholarship

No abstract provided.

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Too Vast To Succeed,, Miriam H. Baer

Faculty Scholarship

Brandon Garrett’s book, Too Big to Jail: How Prosecutors Compromise with Corporations, serves as a stinging indictment of the ways in which deferred prosecution agreements, the federal government’s preferred way for dealing with publicly-held corporate offenders, fail multiple tests of good governance. As Garrett argues, they arise out of an opaque process and over the long run, they may be falling short of securing meaningful compliance among corporate offenders and similarly situated organizations.

To cure this problem, Garrett proposes a straightforward but far-reaching restructuring of corporate criminal practice: prosecutors should presumptively indict corporate offenders, and judges should intervene in corporate …

Some Skepticism About Criminal Discovery Empiricism, Miriam H. Baer

Faculty Scholarship

This Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions.

Open-file discovery has quickly become a fertile source of debate among scholars and practitioners. Turner and Redlich have devised a valuable survey to test theoretical claims commonly asserted by open-file discovery’s opponents and supporters. Unsurprisingly, the authors find that disclosure is generally broader in North Carolina (an open-file state) than in Virginia. More notable …

Wrongfully Convicted In California: Are There Connections Between Exonerations, Prosecutorial And Police Procedures, And Justice Reforms?, Justin P. Brooks, Zachary Brooks

Faculty Scholarship

No abstract provided.

If Hindsight Is 20/20, Our Justice System Should Not Be Blind To New Evidence Of Innocence: A Survey Of Post-Conviction New Evidence Statutes And A Proposed Model, Justin P. Brooks, Alexander Simpson, Paige Kaneb

Faculty Scholarship

No abstract provided.

Forensics And Fallibility: Comparing The Views Of Lawyers And Jurors, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a trial. As the Supreme Court has put it: “criminal justice today is for the most part a system of pleas, not a system of trials.” However, a CSI effect could be more consequential if it affects how criminal lawyers assess forensic evidence when they negotiate pleas …

The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability And The Yates Memo, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr.

Faculty Scholarship

This purpose of this essay is to critique a 2015 report entitled Mind the Gap: The Lack of Accountability for Killer Robots by Human Rights Watch (HRW) produced with the assistance of the Harvard Law School’s International Human Rights Clinic (IHRC). The HRW/IHRC paper attempted to establish that autonomous weapons should be banned because, they claim, “neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous systems.” Contrary to HRW/IHRC assertions, this article maintains that although no one can “guarantee” accountability, there are sufficient legal tools to do so …

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

Address: The Civil Rights Approach To Campus Sexual Violence, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

A Call To Cultivate The Public Interest: Beyond Pro Bono, Ann Juergens, Diane Galatowitsch

Faculty Scholarship

This essay asserts that incorporation of the public's interests in lawyers' daily work is an essential responsibility of the profession. The Preamble to the Model Rules of Professional Conduct frames this lawyers' duty as that of a "public citizen having special responsibility for the quality of justice." Yet the modem legal profession has reduced "public interest" practice to work that is done for no or almost no fee. The transformation of lawyer from public citizen to servant of mostly private interests has taken place over the last thirty-five years, following the legal profession's embrace of pro bono work by volunteer …

Fmri And Lie Detection, Anthony D. Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Some studies have reported the ability to detect lies, with a high degree of accuracy, by analyzing brain data acquired using functional magnetic resonance imaging (fMRI). But is this new technology ready for its day in court?

This consensus knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience takes a closer look at the potential and pitfalls of fMRI lie detection techniques, providing insight into the areas of the brain involved in lying, the impact of memory on deception, how countermeasures may foil our efforts to detect lies, and factors that can create cause for concern about …

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Kianga Mweba’s cellphone camera blurs into darkness broken by flashes of lights surrounding her car. From the audio of her cellphone recording, one can hear Kianga Mweba scream as she is pulled out of the car and tased. Mweba, arrested as she filmed the police detaining a man on the street, was charged with attempted assault on an officer. After recovering footage from her phone, her defense attorney produced the video as evidence against the criminal charges. Now the recording is a key piece of evidence in a lawsuit against the department. Mweba’s experience, captured by her cellphone camera, rallied …

A Federal Certificate Of Rehabilitation Program: Providing Federal Ex-Offenders More Opportunity For Successful Reentry, Lisa A. Rich

Faculty Scholarship

The purpose of this Article is to propose a new federal certificate of rehabilitation program. The creation of such a program not only would help the thousands of federal offenders released back into their communities every year overcome employment barriers but would also serve as a model for states to use in addressing the need of their own burgeoning population of former offenders. In order to understand the magnitude of the problem, it is essential to understand the pool of offenders affected by their criminal history, the intent of the federal agencies to assist this disadvantaged group, and the barriers …

Beyond Deportation: Understanding Immigration Prosecutorial Discretion And United States V. Texas, Shoba S. Wadhia

Faculty Scholarship

In this article, I place the Supreme Court case of United States v. Texas into a broader context by describing the history and legal authority for prosecutorial discretion in immigration law and highlighting the contents and recommendations in my book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. Part I of this article offers a primer on the role of prosecutorial discretion in immigration law and also describes two related programs announced by President Obama on November 20, 2014 and the subject of litigation for nearly two years as of this writing. Part II provides a history …

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Faculty Scholarship

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for “finding” CIL – that is, for determining that particular norms qualify as CIL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to …

Learning To Counter Mass Incarceration, Brett Dignam

Faculty Scholarship

Limited access to education inside American prisons imposes a devastating condition of confinement that cripples both the offender and the community. The prolonged and empty time that characterizes prison today affords little mental stimulation, productive engagement, or preparation for post-release employment. Recent research and analysis has found that education during incarceration correlates with lower rates of recidivism and increases the likelihood and quality of post-release employment. There is a pronounced racially disparate dimension to these effects that are concentrated in communities where investment by the criminal justice system is extraordinarily high. Failure to provide education and the resulting higher rates …