Digital Commons Network^™

Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).

Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate …

Rethinking Crime Legislation: History And Harshness, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is a truth about the criminal law that scholars evade as much as they criticize: the criminal law is produced by legislators (rather than the experts). The author states she does not know of any way to make law in a democracy other than through the voters' representatives. And, yet, it is the standard pose of the criminal law scholar to denigrate legislatures and politicians as vindictive, hysterical, or stupid. All of these things may be true but name-calling is a poor substitute for analysis. As in constitutional law, so too in criminal law, it is time to put …

Localization And Transparency In Sentencing: Reflections On The New Early Disposition Departure, Michael M. O'Hear

Faculty Publications

A newly authorized "early disposition departure" permits federal judges to reduce the sentences of criminal defendants who plead guilty quickly pursuant to a locally adopted early disposition program. The new departure mechanism provides the first formal mandate in the United States Sentencing Guidelines for "localization," that is, adjusting the sentences of federal defendants based on local circumstances. This paper provides a defense of localization, and suggests that localization may be reconciled with the Guidelines' overriding objective of transparency in sentencing. The early disposition departure provides a model of "transparent localization," but could be reformed so as to offer both transparency …

Defense-Oriented Judges, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this essay, I argue in favor of so-called "defense-oriented judges." Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who …

Too Much Heart And Not Enough Heat: The Short Life And Fractured Ego Of The Empathic, Heroic Public Defender, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this Article I will examine Professor Ogletree's paradigm for motivating and sustaining public defenders ten years after he proposed it. I will discuss whether Professor Ogletree's paradigm works for defenders in the predominantly high-volume, urban settings in which they practice, and if so, for how long. If the paradigm works for short-term defenders only - or those with smaller caseloads - then perhaps it is a temporary, not a sustaining, motivation. I will examine whether the paradigm is helpful- on an aspirational level if nothing else – or whether it emphasizes motivations that are ultimately self-defeating. After discussing Professor …

Just Do It, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Racial injustice has always been a problem in the United States. The most salient victims of the Nation's discrimination against racial minorities have included indigenous Indians, Chinese immigrants, Japanese-American citizens, Latinos, and of course blacks. But as the current war on terrorism illustrates, under the right conditions, almost any racial group can come within the scope of America's discriminatory focus. It is common to suppose that that there is a difference between the progressive and the conservative ends of the political spectrum concerning the issue of race. However, those commonly accepted differences pale in comparison to the overriding similarity that …

Teaching And Doing: The Role Of Law School Clinics In Enhancing Access To Justice, Jane H. Aiken, Stephen Wizner

Georgetown Law Faculty Publications and Other Works

This Essay revisits the issue of the role that law school clinics can, and should play, in expanding access to justice. To do so we need to cast a critical eye on what we do, who we are, what we have become, and whether we need to rediscover, redefine, and reimagine our professional role as law school clinical teachers.

The Entrapment Defense: An Interview, Paul Marcus

Faculty Publications

No abstract provided.

Intergenerational Preferences Regarding Punishment Of Criminal Offenders, Allison Deutsch, Molly Movall, Christine Van Berkum

Presidential Scholars Theses (1990 – 2006)

The purpose of this study is to examine intergenerational differences regarding corporal punishment of criminal offenders, particularly preferential differences that occur between members of the Baby Boom and Echo-Baby Boom generations. This research is of interest due to America 's changing culture. The children of Baby Roomers see fewer acts and practices as sinful and morally wrong than do their parents, and our research examines if similar changes occurred in the criminal justice system in response to how offenders should be punished. No studies currently exist which examine this issue, and this research will create awareness in the discipline of …

The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas

Utah Law Review

The Sixth Amendment guarantees criminal defendants effective assistance of counsel. The criminal justice system implements this guarantee by appointing counsel for indigent defendants and then reviewing their performance after the fact, on appeal or habeas corpus. Strickland v. Washington's two-pronged test of effectiveness asks first whether defense counsel's "performance fell below an objective standard of reasonableness." Second, Strickland requires affirmative proof that an error was prejudicial. This prong requires defendants to prove a reasonable probability that the error affected the outcome of the trial or penalty hearing.

The Battle To Establish An Adversarial Trial System In Italy, William T. Pizzi, Mariangela Montagna

Publications

No abstract provided.

A Different Kind Of Labor Law: Vagrancy Law And The Regulation Of Harvest Labor, 1913-1924, Ahmed A. White

Publications

No abstract provided.

Course Schedule Spring 2004, William & Mary Law School

Course Information

No abstract provided.

Book Review Of Post-Conflict Justice (C. Bassiouni, Ed.), Ruti G. Teitel

Other Publications

No abstract provided.

An Outcome Evaluation Of An Outreach Program For Injection Drug Users, Corey Renee Campbell

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

Prison Voices: Lessons On Youth Recidivism, Shad E. Bailey

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

Tribute To Yale Kamisar, Ruth Bader Ginsburg

Michigan Law Review

When the editors of this issue told me of Professor Yale Kamisar's decision to retire from full-time teaching after a near half century of law faculty service, two thoughts came immediately to mind. First, I thought of the large loss to Michigan students unable to attend his classes and to faculty colleagues at Ann Arbor unable routinely to engage his bright mind. Second, I thought it altogether right for the Michigan Law Review to publish an issue honoring one of the Law School's most prized professors. When invited to write a tribute, I could not resist saying yes.

Professor Yale Kamisar: "Awesome", Harry T. Edwards

Michigan Law Review

Yale Kamisar arrived in Ann Arbor in the fall of 1965, just after I graduated from the University of Michigan Law School, so I never had him as a teacher. We were colleagues, however, for almost ten years during the 1970s when we were both members of the Michigan faculty. And we have remained good friends ever since. When the editors of the Michigan Law Review asked me if I would submit a "tribute" to Professor Kamisar commemorating his retirement from the faculty, I was happy to accept the invitation. Yale is one of my heroes in the academy - …

"What Is A Kamisar?", Wayne R. Lafave

Michigan Law Review

My good and old friend Yale Kamisar is said to be "retiring" after a remarkable life in academe spanning almost half a century. I deem it my extraordinary good fortune to have been able to count Yale as a friend for thirty-seven of those years (not that we were enemies the rest of the time), and to have been able to serve as a collaborator of his, working together in the vineyards of the law, for virtually the entirety of our acquaintance. And thus I am especially delighted to have this opportunity to offer up a "fair and balanced" appraisal …

Publications By Professor Yale Kamisar, Michigan Law Review

Michigan Law Review

A bibliography of publications by Yale Kamisar.

A Deadly Dilemma: Choices By Attorneys Representing "Innocent" Capital Defendants, Welsh S. White

Michigan Law Review

A lawyer who represents a capital defendant with a strong innocence claim must allocate her resources between the separate guilt and penalty phases of the capital case. Expending resources in preparation for a penalty trial may result in less attention to securing the acquittal on the capital charge at the guilt trial that would make the penalty phase moot. But focusing primarily on proving the defendant's innocence at the guilt trial means less preparation in the case of a guilty verdict. Once a defendant is convicted of a capital offense, a lawyer must also make strategic decisions about the penalty …

Books Received, Michigan Law Review

Michigan Law Review

No abstract provided.

Business As Usual? Brown And The Continuing Conundrum Of Race In America, Robert S. Chang, Jerome M. Culp Jr.

Faculty Articles

In this article, Professors Robert Chang and Jerome Culp examine the state of race in America in the aftermath of the landmark Supreme Court decision of Brown v. Board of Education, focusing on the ten-year window preceding its fiftieth anniversary. Their findings reveal that while Brown established fundamental precedent in the area of race relations, racial inequality remains entrenched in a number of modern social institutions. Chang and Culp analyze this dilemma by focusing on three distinct trends. First, a cycle of inequality is driven by racial disparities in wealth and perpetuated by interlocking systems of education, housing, family, healthcare, …

Bulletin 2004-2005, Seattle University School Of Law

Viewbooks

No abstract provided.

'But I Thought He Had A Gun' - Race And Police Use Of Deadly Force, Cynthia Lee

GW Law Faculty Publications & Other Works

It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by …

Beyond Retribution And Impunity: Responding To War Crimes Of Sexual Violence, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003.

Joseph …

Families And The Moral Economy Of Incarceration, Donald Braman

GW Law Faculty Publications & Other Works

This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa's story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system's response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a …

Civic Renewal And The Regulation Of Non-Profits, Miriam Galston

GW Law Faculty Publications & Other Works

Civic Renewal and the Regulation of Non-profits analyzes four understandings of civic renewal, elaborated in the wake of Robert Putnam's book Bowling Alone, in light of the federal regulatory scheme imposed upon voluntary associations that qualify as "exempt organizations" under the Internal Revenue Code. These perspectives emphasize the primacy of one or more of the following as indispensable elements of civic health: (1) cooperation and effective collective action, (2) self-governance (3) equality and representative institutions, and (4) the moral character of the community or the public spiritedness of citizens. The study analyzes how the different assumptions and purposes of these …

Gambling With Ethics And Constitutional Rights: A Look At Issues Involved With Contingent Fee Arrangements In Criminal Defense Practice, Adam Silberlight

Seattle University Law Review

This Article attempts to shed light on the use of a contingent fee arrangement in criminal defense, and offers differing views pertaining to this topic. First, this Article will generally describe what a contingent fee is. Second, the role and potential application of the contingent fee in both criminal and civil settings will be discussed. Third, problems associated with such an arrangement in criminal defense practice will be addressed, as will certain positive aspects of such an arrangement. Finally, this article will discuss how lawmakers could address this issue to ensure that contingency arrangements cannot be abused.

Flawed Justice: Limitation Of Parental Remedies For The Loss Of Consortium Of Adult Children, William S. Bailey

Seattle University Law Review

This article presents the inherent contradiction between a parent- child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift. Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research. In …