Digital Commons Network^™

An Empirical Study Of Amici Curiae In Federal Court: A Fine Balance Of Access, Efficiency, And Adversarial, Linda Sandstrom Simard

Suffolk University Law School Faculty Works

During a recent telephone conversation, a colleague and I discussed whether the United States Supreme Court bears some resemblance to a quasi administrative agency. Of course, the Supreme Court is an Article III court, not an administrative agency. Yet, in more than 50% of the cases on the Court's docket, non parties are permitted to offer legal and/or factual information to supplement the legal and factual arguments made by the parties to the suit. Such non party participants, commonly referred to as amicus curiae - or friends of the court, frequently raise new arguments that are totally absent from the …

Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay

Faculty Scholarship

Under the law of lost evidence, absent a showing of bad faith, no due process violation occurs when the police lose potentially exculpatory evidence. This is so even though the evidence may be critical to the defense and even though post-conviction DNA testing has exonerated more than 200 individuals. Ironically, the case that developed that rule of law, Arizona v. Youngblood, is founded on the conviction of an innocent man. This Article critically examines Youngblood and provides a conceptual framework for examining the constitutional right of access to evidence. Supreme Court precedent reflects two different, sometimes competing, visions of procedural …

Restoring The Grand Jury, Kevin Washburn

Faculty Scholarship

Though it is enshrined in the Constitution, the grand jury is one of the least respected institutions in American criminal justice today. Scholars regard the grand jury just as doctors regard the appendix: an organic part of our constitutional makeup, but not of much use. While scholars have proposed reforms, most of them seem only loosely related to the fundamental purpose of the grand jury. In an era of plea bargains, the grand jury can serve a crucial role in insuring popular legitimacy in the criminal justice system. In light of the criticism, however, the grand jury seems to be …

The Politics Of Policing: Ensuring Stakeholder Collaboration In The Federal Reform Of Local Law Enforcement Agencies, Kami Chavis Simmons

Faculty Publications

Title 42 U.S. C. § 14141 authorizes the United States Department of Justice ("DOJ") to seek injunctive relief against local law enforcement agencies to eliminate a pattern or practice of unconstitutional conduct by these agencies. Rather than initiate lawsuits to reform these agencies, DOJ's current strategy is to negotiate reforms using a process that involves only DOJ representatives, municipality officials, and police management officials. While there are many benefits of negotiating the reforms, the current process excludes important stakeholders directly impacted by the reforms, including community members, who are the consumers of police services, and the rank-and-file police officers, whom …

Torture And The Professions, David Luban

Georgetown Law Faculty Publications and Other Works

This paper examines the roles played by the learned professions in torture and cruel, inhuman, or degrading treatment carried out by the United States in the war on terrorism. It takes lawyers, physicians, psychologists, and anthropologists as its case studies. It originated as the keynote speech at the Association of Practical and Professional Ethics annual meeting in 2007.

The Relationship Among Washington State County Commissioners Knowledge And Perceptions Of Washington State University Extension And Their Willingness To Fund Wsu Extension, James Hilmer Lindstrom

Graduate Student Theses, Dissertations, & Professional Papers

The study determined the relationship between perceptions that the Washington State county commissioners' hold of WSU Extension and their knowledge of WSU Extension. In addition, the study determined whether their perceptions, knowledge, and/or understanding of Extension are related to and thereby may have predictability to their willingness to provide the essential local funding to continue the educational programs Extension delivers. The study addressed the interest Washington State county commissioners/county council members have in funding WSU Extension, which directly affects the critical element of maximizing Extension's impact on society. As a publicly funded educational organization, WSU Extension faces an uncertain fiscal …

Primer For U.S. Lawyers On European Union Government And Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

When Lawyers Fail Innocent Defendants: Exorcising The Ghosts That Haunt The Criminal Justice Systems, George C. Thomas Iii

Utah Law Review

It seems likely that a criminal law specialist system would offer adequate defense at a lower cost than refashioning and putting more money into today’s dysfunctional system. I believe that a combined system would make more efficient use of lawyer time, in part because weak cases would be more likely to be dismissed and in part because leveling the burden between defense and prosecution should facilitate more efficient case disposition. Thus, with a modest increase in the amount currently spent on prosecution and defense, a jurisdiction could adopt a criminal law specialist system and offer better lawyering on both sides …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Real Property And Peoplehood, Kristen A. Carpenter

Publications

This Article proposes a theory of real property and peoplehood in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States …

The Concept Of "Less Eligibility" And The Social Function Of Prison Violence In Class Society, Ahmed A. White

Publications

No abstract provided.

Guidelines Simplification: Still An Urgent Priority Post-Booker, Michael M. O'Hear

Faculty Publications

No abstract provided.

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Course Schedule Spring 2008, William & Mary Law School

Course Information

No abstract provided.

Report Of William & Mary Marshall-Wythe School Of Law 2007-2008, William & Mary Law School

Annual Report

No abstract provided.

Examining The Effect Of Organizational Policy Changeon Taser Utilizations, Michael Miller

Electronic Theses and Dissertations

The purpose of this study is to examine the effect of organizational policy changes within the Use-of-Force Continuum on taser usage and officer's perceptions of taser effectiveness. Tasers have been used by police since the 1970s and their use is increasing as the technology has improved. Data reveals that tasers are beneficial for controlling non-compliant suspects while preventing serious injuries and rarely has their use resulted in death. Much of the public controversy surrounding tasers centers on when and how often officers deploy them. Use of force data from 890 police citizen encounters during a two-year period was analyzed to …

Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Articles & Chapters

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

* The need to insure that all children receive adequate education

* The need to insure that the cure is not worse than the illness (that is, that …

China Reexamined: The Worst Offender Or A Strong Contender?, Yang Wang

Michigan Law Review

These are the questions that Professor Randall Peerenboom sets out to answer from an American legal scholar's perspective in China Modernizes: Threat to the West or Model for the Rest. Peerenboom advances three main arguments in China Modernizes. First, to more accurately assess China's performance in its quest for modernization, one must "plac[e] China within a broader comparative context" (p. 10). Through a careful analysis of empirical data, Peerenboom observes that China outperforms many other countries at a similar income level on almost all key indicators of well-being and human rights, with the sole exception of civil and political …

Hacking Into International Humanitarian Law: The Principles Of Distinction And Neutrality In The Age Of Cyber Warfare, Jeffrey T.G. Kelsey

Michigan Law Review

Cyber warfare is an emerging form of warfare not explicitly addressed by existing international law. While most agree that legal restrictions should apply to cyber warfare, the international community has yet to reach consensus on how international humanitarian law ("IHL") applies to this new form of conflict. After providing an overview of the global Internet structure and outlining several cyber warfare scenarios, this Note argues that violations of the traditional principles of distinction and neutrality are more likely to occur in cyber warfare than in conventional warfare. States have strong incentives to engage in prohibited cyber attacks, despite the risk …

Hate Crimes And The War On Terror, Cynthia Lee

GW Law Faculty Publications & Other Works

This chapter, which will be part of a 5 volume treatise entitled, Hate Crimes: Perspectives and Approaches (Barbara Perry ed. forthcoming 2009), situates the private acts of hate violence committed against Arab-Americans, Muslim-Americans, Sikh-Americans, and South Asian-Americans in the aftermath of 9/11 into the broader context of the war on terror. In Part I, after providing some general background information on hate crimes, I discuss some of the hate crimes committed in the aftermath of 9/11. In Part II, I examine two common stereotypes about Arabs and Muslims which likely contributed to the post 9/11 backlash against Arabs and Muslims …

Rule 404(B) And Reversal On Appeal, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article discusses a strange case, United States v. Bell, 516 F.3d 432 (6th Cir. 2008), that illustrates the point that, if hard cases make bad law, strange cases sometimes produce surprising appellate decisions. The case began with a domestic violence call to the police, led to a consent search of a home and discovery of drugs and guns, and produced a conviction on drug and weapons charges. Despite the abuse of discretion standard of review and the usual deference appellate courts give to trial judge decisions with respect to the admissibility of uncharged crime evidence, the court of appeals …

Picking The Correct Argument, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article on trial tactics suggests that probably no rule of thumb is more important to a trial lawyer than this: You need only one good theory of admissibility or objection to win a point, and in many instances the key is to pick the winner and avoid the losers. The rule is easy to state and widely acknowledged. It is more difficult, however, to apply than to acknowledge. A related rule is that a lawyer who has a powerful, potentially winning argument, may ultimately lose if that argument is lost in a flurry of less persuasive arguments.

Where Is Criminal Justice In This Presidential Year?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest …

The Importance Of An Independent Bar, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This paper, presented at International Bar Association's 10th Transnational Crime Conference in Washington, D.C., on June 9, 2007 begins from the premise that, as the world becomes more complex and therefore more dangerous, governments seek to limit individual rights in the name of crime control and/or national security. The paper cautions that we must always keep in mind that individual rights once lost are not easily regained. Accordingly, the unique and important role of an independent bar in protecting and defending liberty is more, not less, important than ever before. Thus, the efforts of the lawyers, military and civilian, to …

The Justice System And Domestic Violence: Engaging The Case But Divorcing The Victim, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the development of an inverse relationship in the legal system between the concern accorded domestic violence cases and the concern accorded domestic violence victims. The Article analyzes both philosophical approaches and concrete mechanisms currently used by the justice system to address domestic violence. Concluding that the current system- though it signals a serious institutional attitude toward addressing domestic violence – has failed to increase victim safety, this Article advocates for a paradigm shift in the legal system’s approach to domestic violence.

Specifically, the Article analyzes the viability of a paradigm shift in the philosophy behind current policies …

The Case For Tolerant Constitutional Patriotism: The Right To Privacy Before The European Courts, Francesca Bignami

GW Law Faculty Publications & Other Works

The theory of constitutional patriotism has been advanced as a solution to the European Union's legitimacy woes. Europeans, according to this theory, should recognize themselves as members of a single human community and thus acknowledge the legitimacy of Europe-wide governance based on their shared belief in a common set of liberal democratic values. Yet in its search for unity, constitutional patriotism, like nationalism and other founding myths, carries the potential for the exclusion of others. This article explores the illiberal tendencies of one element of the liberal canon - the right to privacy - in the case law of Europe's …

Randomized Legal Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Social scientists have performed and analyzed a number of randomized studies of policies, but the legal literature has not addressed whether and how the legal system should incorporate experimental methods. This Article identifies several benefits of randomized legal experimentation and argues that these benefits supports self-executing experiments, whose results would lead to policy changes agreed upon in advance. Randomized experiments can generate information, and self-execution can help ensure that this information affects the policy process. Such experiments may be easier to enact than other legal reforms, because each side of a policy debate may believe that an experiment is likely …

Criminal Law And The Pursuit Of Equality, Donald Braman

GW Law Faculty Publications & Other Works

This Article argues that, to make their vision of justice a reality, egalitarians need to change both their focus and their tactics with respect to criminal law. The tragedy of contemporary criminal justice is not that individual rights are too narrowly construed, but that those living in disadvantaged communities are injured both by crime and counter-productive law enforcement. The remedies that egalitarians have historically looked to - remedies articulated within the framework of individual rights - are poorly suited to address the systematic reproduction of inequality that results.

First, egalitarians will need to shift their focus from the racially motivated …

Grand Jury Discretion And Constitutional Design, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

The grand jury possesses an unqualified power to decline to indict - despite probable cause that alleged criminal conduct has occurred. A grand jury might exercise this power, for example, to disagree with the wisdom of a criminal law or its application to a particular defendant. A grand jury might also use its discretionary power to send a message of disapproval regarding biased or unwise prosecutorial decisions or inefficient allocation of law enforcement resources in the community. This ability to exercise discretion on bases beyond the sufficiency of the evidence has been characterized pejoratively as grand jury nullification. The dominant …

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to non-constitutional trial errors until forty years ago, when the Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees - the right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the harmless …