Digital Commons Network^™

Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben

Faculty Works

In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was …

The Confrontation Right Across The Systemic Divide, Richard D. Friedman

Book Chapters

In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.

In this essay, I will explore how these four features play out in the …

An Early Pennsylvania Legal Periodical Journal Of Law, 1830-31, Joel Fishman

Law Faculty Publications

There has been much written on the history of legal periodicals, especially academic law reviews, but the early history of legal periodicals in the United States has only received cursorily review in two older articles.¹ Frederick Hicks lists forty-eight periodicals published in antebellum America, of which twelve were published in Pennsylvania, four before 1831, including no. 1 (American Law Journal, 1808-12), no. 6 (Journal of Jurisprudence, 1821), no. 11 (United States Law and Legal Intelligence, 1829-31) and no. 14 ( Journal of Law, 1830-31).² This article will review this last periodical …

Rape At Rome: Feminist Interventions In The Criminalization Of Sex-Related Violence In Positive International Criminal Law, Janet Halley

Michigan Journal of International Law

This Article examines the work of organized feminism in the formation of new international criminal tribunals over the course of the 1990s. It focuses on the statutes establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). It offers a description of the evolving organizational style of feminists involved in the legislative processes leading to the establishment of these courts, and a description of their reform agenda read against the outcomes in each court-establishing statute. At each stage, the Article counts up the feminist victories and defeats, …

Measuring The Value Of Kentucky Vehicle Enforcement Activities, Jennifer R. Walton, Joseph D. Crabtree, Candice Y. Wallace, Jerry G. Pigman

Kentucky Transportation Center Research Report

The responsibility for monitoring commercial vehicles on Kentucky’s roadways and enforcing the applicable laws and regulations falls primarily on Kentucky Vehicle Enforcement (KVE). KVE personnel are involved in a variety of activities including commercial vehicle size and weight enforcement, work zone speed enforcement, and general traffic monitoring and enforcement. The objectives of this study were to identify, describe, and (where possible) quantify the benefits associated with the activities of KVE. The primary benefits provided by the activities of KVE are: reductions in crashes, injuries, and fatalities; protection of the revenue streams that replenish Kentucky’s Road Fund; reduced damage to Kentucky’s …

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

UF Law Faculty Publications

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case. Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today. Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

UF Law Faculty Publications

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

UF Law Faculty Publications

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Immigration: Deportation And The Pseudo-Science Of Unassimilable Peoples, George A. Martinez

SMU Law Review

In this essay (Symposium on Immigration Law – Immigrants, Vigilantes, and Immigration Reform: Civil Rights in the 21st Century, SMU Dedman School of Law, 2007), the author seeks to critically examine an important aspect of immigration policy. Recent events, including scholarly analysis and political action, raise the question of whether it is appropriate to direct deportation efforts primarily at Mexican and other Latino immigrants on the ground that such peoples are unassimilable.

In Part II, the author describes how perceptions of Latino unassimilability appear to have led to deportation efforts being directed against Mexicans and Latinos. In Part III, he …

New Look At Neo-Liberal Economic Policies And The Criminalization Of Undocumented Migration, A, Teresa A. Miller

SMU Law Review

No abstract provided.

Overcoming Necessity: Torture And The State Of Constitutional Culture, Thomas P. Crocker

SMU Law Review

No abstract provided.

Use Of Litigation Screenings In Mass Torts: A Formula For Fraud, The, Lester Brickman

SMU Law Review

No abstract provided.

Elements Of Liberty, Sacks Deana Pollard

SMU Law Review

No abstract provided.

Motivational Law , Arnold S. Rosenberg

Cleveland State Law Review

After defining the concept of motivational law and giving several examples in Parts II.A and II.B, I discuss in Part II.C how motivational law fits into theories of law. In Part II.D, I explore the boundaries of motivational law and what it means to say that a law is "motivational." Part III.A examines motivational law as a type of intrinsic social control, and Part III.B explains how motivational law works through moral community-building, naming and shaming, cognitive dissonance and cognitive biases. Part IV.A asks why motivational law often fails, IV.B looks at the equivocal evidence of the efficacy of religious …

Violence, Fear, And Jason's Law: The Needless Expansion Of Social Control Over The Non-Dangerous Mentally Ill In Ohio, Jessica L. Mackeigan

Cleveland State Law Review

Ohio House Bill 299, known as Jason's Law in memory of Officer Jason West, proposes involuntary outpatient care for treatment resistant mentally ill individuals. Jason's Law should not be enacted as written because it will compel respondents to adhere to outpatient treatment based upon predictions of future danger to self or others rather than findings of imminent danger or incompetence, it will remove treatment flexibility currently guaranteed by Ohio law by extending the duration of treatment and limiting a treatment provider's discretion, it will compel the use of unproven medication over the objections of a presumably competent individual without requiring …

Model Field Training And Evaluation Program Policy For The Turkish National Police Organization, Erhan Beyhan

Theses and Dissertations

Police field training and evaluation programs are vital for officer development; although very little research has been conducted in this area. This study aimed to build a field training and evaluation program policy for the Turkish National Police Organization using the framework of corresponding police departments’ programs in the United States. Mission statements, program structure, standard evaluation guidelines, field training officer selection, and recruit termination are the fundamental elements of the FTO programs, which were reviewed in this research.

Criminal Histories Of Methamphetamine Users: A Rural Analysis, Israt Zohra

Theses and Dissertations

This thesis examined criminal histories of methamphetamine users in rural counties of Arkansas. More specifically, the study explored the difference between methamphetamine users with and without criminal histories. Although there are plenty of research on demographic characteristics, sociological attributes, and drug dependencies of methamphetamine users, there seems to be a gap in the literature focusing on why certain methamphetamine users have been arrested versus users who have not been arrested. A preliminary analysis of the data indicated 60 percent of the participants in the study had criminal histories, while 40 percent have never been arrested; therefore, this study explored potential …

From Little Rock To Seattle And Louisville: Is "All Deliberate Speed" Stuck In Reverse?, Charles J. Ogletree Jr., Susan Eaton

University of Arkansas at Little Rock Law Review

More than 50 years after Brown v. Board of Education, in Parents Involved in Community Schools v. Seattle School District, the Supreme Court issued a much anticipated, sharply divided opinion concerning the conscious use of a student’s "race" in plans to desegregate now de facto segregated public schools. The Court found unconstitutional the race-inclusive methods used by the Seattle and Louisville public school officials who were attempting to create racially integrated schools.

In order to understand the full impact of the Supreme Court’s recent decisions regarding school desegregation, an analysis of the Seattle and Louisville plans and the Court’s reasoning …

Rule 804(B)(6) - The Illegitimate Child Of The Failed Liaison Between The Hearsay Rule And Confrontation Clause, Anthony Bocchino, David Sonenshein

Missouri Law Review

This article argues that the "Forfeiture by Wrongdoing" exception to the hearsay rule is utterly lacking in any of the traditional indicia of trustworthiness, which are the universal hallmark of all admissible hearsay evidence pursuant to the Federal Rules of Evidence. Further, we take the position that this rule is an unnecessary systemic check against civil and criminal litigants who intentionally subvert the justice system by procuring the unavailability of witnesses by wrongdoing. Other sanctioning mechanisms which do not allow criminal and civil justice decisions be influenced or determined by untrustworthy evidence exist and are better tailored to the deterrence …

The Importance Of Effective Investigation Of Sexual Violence And Gender-Based Crimes At The International Criminal Court, Susana Sacouto

Feminist Scholarship

INTRODUCTION: Several provisions in the Rome Statute of the International Criminal Court (ICC or the Court) indicate that the statute's drafters intended sexual violence and gender-based crimes to be given specific attention during the investigation of potential cases before the Court. For instance, Article 54(1)(b) requires that, in ensuring the "effective investigation and prosecution of crimes within the jurisdiction of the Court," the Prosecutor "take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children."' The Rome Statute also provides that States Parties, which are responsible for nominating and electing …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

Unexpected Plans, Alberto Gonzales

St. Thomas Law Review

This speech was presented on March 13, 2008, at the National Conference of Law Reviews in Key Biscayne, Florida.

24 And The Efficacy Of Torture, Matthew D. Semel

Criminal Justice Faculty Publications

In the Fox Television Network program 24 a fictional counterterrorism agent named Jack Bauer uses extreme measures, including torture, to save the United States from catastrophic terrorist attacks. Bauer uses torture even though its efficacy is in question and it is illegal. Political leaders, including President George Bush, have endorsed the use of torture and Bauer's fictional success has reinforced that the idea these methods are both necessary and effective in obtaining actionable intelligence. This paper examines existing literature on military interrogations in the context of 24 and reviews empirical and descriptive evidence about existing practices. While researchers cannot ethically …

Government And Politics Newsletter, Issue 4, Sacred Heart University

Government and Politics Newsletter

No abstract provided.

Securing The Global City: Crime, Consulting, Risk, And Ratings In The Production Of Urban Space, Katharyne Mitchell, Katherine Beckett

Indiana Journal of Global Legal Studies

The last decade has witnessed the rise of private transnational institutions that increasingly influence the organization and management of urban space. Two institutions are especially powerful in this regard: bond-rating agencies and global security firms. Bolstered by a discourse of risk and the need to securitize cities, these institutions have garnered enormous amounts of power with respect to urban social and spatial control. They are implicated in the imprisonment and displacement of marginalized populations, the intensification of gentrification, and general shifts in municipal funding priorities. The authors illustrate these themes through a case study of New York City, followed by …

Introduction, Taunya Lovell Banks

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

What Does Documentary Filmmaking Have To Do With Practicing Law?, Peggy Cooper Davis

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Introduction: Re-Stating The Standard Of Practice For Death Penalty Counsel: The Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty Cases, Eric M. Freedman

Hofstra Law Review

This is the Introduction to the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases, and summarizes its thirteen articles.

A central - indeed, arguably the central - duty of defense counsel in a capital case is to humanize the client in the eyes of those who will decide his fate. The daunting task of imagining, collecting, and presenting such mitigation evidence pervades counsel's responsibilities from themoment of detention on potentially capital charges to the instant of execution.

A truly multi-disciplinary team, with skills in eliciting and documenting sensitive …

Capital Guidelines And Ethical Duties: Mutually Reinforcing Responsibilities, Lawrence J. Fox

Hofstra Law Review

This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.

It is counsel, and not any non-lawyer member of the multidisciplinary defense team which needs to be assembled to provide competent representation in a capital case, who bears ultimate responsibility for the team's performance and for decisions affecting the client and the case. This article describes the many respects in which counsel's specific obligations under both the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra …