Digital Commons Network^™

Judging In The Time Of The Extraordinary, Samuel Issacharoff

Faculty Articles

The article presents a memorial lecture for Houston, Texas Judge John R. Brown which discusses the role of courts in the U.S. It states that before Brown's contributions to the enforcement of civil rights, he had been considered as one of the leading admiralty lawyers from his generation. Moreover, it mentions that courts had been playing an important role in the legal transformation which is presented by cases wherein the courts can serve as the protection of citizens from the minority level.

Disestablishing The Family, Alice Ristroph, Melissa Murray

Faculty Articles

This Feature explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called "free exercise of the family" have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Feature suggests …

Organizational Guidelines For The Prosecutor's Office, Rachel E. Barkow

Faculty Articles

The article discusses organizational guidelines for the office of the prosecutor. It argues that it is time for the prosecutors to recognize that their own offices should be held to the same standards as other organizations. It describes the pressures that lead to the prosecutorial misconduct and the lack of any effective checks on this behavior. It outlines the parallels between prosecutorial misconduct and the misconduct of corporate employees, and describes how prosecutors have addressed organizational misconduct in the corporate context. It explains how the corporate compliance model could be practically applied to prosecutors' offices.

Relative Doubt: Familial Searches Of Dna Databases, Erin E. Murphy

Faculty Articles

The continued growth of forensic DNA databases has brought about greater interest in a search method known as 'familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …

Criminal Analysis And The Effect On Police Decision Making, Deanna T. Dimartino

Electronic Theses and Dissertations

No abstract provided.

The Geography Of Criminal Law, Adam Benforado

Cardozo Law Review

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal …

The Struggle For Sufficient Housing In Santa Clara Countuy, Robert Musallam

Master's Theses

This study examined the role systemic racism plays in shaping people's ability to acquire sufficient housing in Santa Clara County. The purpose of this study was to identify historical and contemporary forms of institutional racism through the narratives of residents or former residents of the San Jose Family Homeless Shelter [SJFS] in San Jose, California. Of particular interest is evidence of housing discrimination and what Neubeck and Cazenave (2001) call "welfare racism." Clients of the SJFS represent those directly affected by welfare reform and least protected from oppressive housing policies or practices.

Through semi-structured open-ended interviews with former residents of …

Race/Ethnicity And Potential Suicide Misclassification: Window On A Minority Suicide Paradox?, Ian Rh Rockett, Shuhui Wang, Steven Stack, Diego De Leo, James L. Frost, Alan M. Ducatman, Rheeda L. Walker, Nestor D. Kapusta

Wayne State University Associated BioMed Central Scholarship

Abstract

Background

Suicide officially kills approximately 30,000 annually in the United States. Analysis of this leading public health problem is complicated by undercounting. Despite persisting socioeconomic and health disparities, non-Hispanic Blacks and Hispanics register suicide rates less than half that of non-Hispanic Whites.

Methods

This cross-sectional study uses multiple cause-of-death data from the US National Center for Health Statistics to assess whether race/ethnicity, psychiatric comorbidity documentation, and other decedent characteristics were associated with differential potential for suicide misclassification. Subjects were 105,946 White, Black, and Hispanic residents aged 15 years and older, dying in the US between 2003 and 2005, whose …

International Antitrust, Bruno L. Peixoto, Mark Katz, Elisa Kearney, Lorena Pavic, Juan Coeymans, Mauricio Jaramillo, Lucía Ojeda, Claire Webb, Ausra O. Pumputis, Paul Schoff, Jing Chua, Peter Wang, Yizhe Zhang, Pallavi S. Schroff, Harman Singh Sandhu, Gunnar Wolf, Michael Clancy, François Brunet, Eric Paroche, Susanne Zuehlke, Jan Phillip Komossa, Alberto Pera, Valentina Caticchio, Vassily Rudomino, Selin Beceni, Stephen Kon, Gordon Christian, Jai Bhakar, Heather Irvine

The International Lawyer

No abstract provided.

Between Safety And Transparency: Prior Restraints, Foia, And The Power Of The Executive, Devin S. Schindler

UC Law Constitutional Quarterly

The Freedom of Information Act, and, to a lesser extent, the Constitution, embody a democratic commitment to transparent and open government. Roughly balanced against this commitment is the need in selected circumstances to prevent the release of information that could lead directly or indirectly to tangible harm to America and its interests. Most recently, the debate between safety and transparency came to the forefront in the case American Civil Liberties Union v Department of Defense, where the Second Circuit ordered the President to release a series of nonconfidential but potentially inflammatory pictures showing prisoner abuse at the Abu Ghraib prison. …

University Studies Annual Assessment 2009-2010, Portland State University. University Studies Program

University Studies Annual Assessment Reports

Annual in-depth examination and assessment of Portland State University's general education model, the University Studies Program. The tools and methods used to assess student learning are faculty driven and developed.

Fast-Track Sentencing Disparity: Rereading Congressional Intent To Resolve The Circuit Split, Thomas E. Gorman

University of Chicago Law Review

No abstract provided.

Retributivism Refined—Or Run Amok? (Reviewing Crime And Culpability: A Theory Of Criminal Law By Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse), Kenneth W. Simons

University of Chicago Law Review

No abstract provided.

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii

University of Chicago Law Review

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v Pennsylvania in 1986, crescendoed in Blakely v Washington and United States v Booker in 2004-2005, and continues in cases such as Oregon v Ice, is a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It has failed to recognize that defining, adjudicating, and punishing crimes implicates both the Sixth Amendment …

In Re Ests. Of Swansons: The Slayer Statute And The Impact Of A Guilty Plea On Collateral Estoppel In Montana, Peter Arant

Montana Law Review

In Re Ests. of Swansons: The Slayer Statute

Fine-Labor: The Symbiosis Between Monetary And Work Sanctions, Martin H. Pritikin

University of Colorado Law Review

Monetary sanctions (fines and restitution) and work sanctions are theoretically superior to incarceration: they can deliver deterrence more cheaply, benefit victims tangibly, and promote offender rehabilitation. Yet incarceration remains the dominant punishment in America, even where incapacitation concerns are secondary. This is due in large part to practical drawbacks to the alternatives: monetary sanctions are difficult to enforce and do not seem punitive enough, and unions have successfully lobbied against the competitive threat of convict labor. In a hybrid "fine-labor" system, in which offenders are made to work to pay fines and restitution, the work component could remedy the flaws …

In Theory, In Practice: Judging State Jurisdiction In Indian Country, Carole Goldberg

University of Colorado Law Review

International relations theory suggests some new ways of thinking about the conflict between states and tribes over jurisdiction in Indian country. Realists portray the struggle as a clash of self-interested political actors, with the most powerful prevailing. Norms-driven theory suggests that perceptions of which legal system satisfies widely accepted standards for fair and effective justice will determine which entity is allowed jurisdiction. Since norms-driven analysis seems more prevalent in Supreme Court decisions, this Article pursues its implications for tribal-state jurisdictional conflicts, finding that federal courts and other decisionmakers seem to favor state over tribal jurisdiction because state jurisdiction is perceived …

Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle

University of Colorado Law Review

In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is "separate but unequal" and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles. This Article traces the historical foundations …

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan …

Book Review: The International Criminal Court: A Commentary On The Rome Statute By William Schabas, Oxford: Oxford University Press, 2010, Robert Currie

Articles, Book Chapters, & Popular Press

"A Commentary on the Rome Statute" by William Schabas is a giant of a work by a giant in the field. This review examines the breadth and scope of one of the most important works in the field, concluding that the book is not just an excellent resource but an indispensable one for anyone working in or following the field of international criminal justice.

The Emperor's Clothes: Evaluating Head Of State Immunity Under International Law, Mary Margaret Penrose

Faculty Scholarship

To date, most attempts at prosecuting heads of state have fallen short. At best, such attempts, even the modern attempts stretching from Iraq to Yugoslavia to Sierra Leone, have occurred under less than ideal circumstances, often far, far away from the actual place of alleged crime, or so distant in time to have lost some of its meaning. While academics, international lawyers and human rights advocates all praise the "Pinochet precedent" as paving the way for prosecuting deposed despots and ending the luxurious exiles of former dictators, in the end Pinochet was released from custody and returned home to Chile …

Legislatures, Judges, And Parole Boards: The Allocations Of Discretion Under Determinate Sentencing, Dhammika Dharmapala, Nuno Garoupa, Joanna M. Shepherd

Faculty Scholarship

The most significant development in criminal sentencing in recent decades has been the shift from indeterminate to determinate sentencing. Yet no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges' and parole boards' discretion over criminal sentencing. First, we develop a political economy model that explains why legislatures acting in their own self-interest may be motivated to enact these laws. Our model predicts that legislatures are more likely to enact determinate sentencing reforms when there is tension among the …

Too Good To Be True: Second Thoughts On The Proliferation Of Mental Health Counts, H Archibald Kaiser

Articles, Book Chapters, & Popular Press

The last two decades have witnessed the proliferation of mental health courts, proffered by governments as an efficacious and sometimes exclusive response to the complex social dynamics causing the criminalization of persons who live with mental health problems. the ready embrace of this variant of the problem-solving-courts genre has diverted policy-makers and citizens from confronting the root causes of the challenging intersection of mental illness and crime. the new courts have acquired a legitimacy that belies a wide range of doubts about their existence and operation. this commentary will offer a counterpoint to the accelerating momentum of mental health courts. …

Deferring Ineffectiveness Claims To Collateral Review: Ensuring Equal Access And A Right To Appointed Counsel, Thomas M. Place

Faculty Scholarship

The article addresses a problem in criminal procedure that leaves an increasingly large number of defendants without a remedy to protect their right to effective assistance of counsel at trial and on direct appeal. The problem stems from the decision of states to move ineffectiveness claims from direct appeal to the post-conviction process and the fact that over half the states limit access to post-conviction remedies to defendants who are in custody. If the defendant’s prison sentence is completed during the period direct appeal is pending, or, in some jurisdictions, before the collateral review process is completed, the defendant is …

Decriminalizing Border Crossings, Victor C. Romero

Faculty Scholarship

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.

Business As Usual: Immigration And The National Security Exception, Shoba S. Wadhia

Faculty Scholarship

Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX …

Instrumentalizing Jurors: An Argument Against The Fourth Amendment Exclusionary Rule, Todd E. Pettys

Fordham Urban Law Journal

In this symposium contribution, I contend that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, I argue that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, I contend that the best approach might be to abandon the exclusionary …

Moving Targets: Placing The Good Faith Doctrine In The Context Of Fragmented Policing, Hadar Aviram, Jeremy Seymour, Richard A. Leo

Fordham Urban Law Journal

The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politic and an acknowledgment that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as …

Databases, Doctrine, And Constitutional Criminal Procedure, Erin Murphy

Fordham Urban Law Journal

Over the past twenty years there has been an explosion in the creation, availability, and use of criminal justice databases. Large scale database systems now routinely influence law enforcement decisions ranging from formal determinations to arrest or convict an individual to informal judgments to subject a person to secondary pre-flight screening or investigate possible gang membership. Evidence gathered from database-related sources is now commonly introduced, and can play a pivotal proof role, in criminal trials. Although much has been written about the failure of constitutional law to adequately respond to the threat to privacy rights posed by databases, less attention …

Welcome To Amerizona - Immigrants Out: Assessing Dystopian Dreams And Usable Futures Of Immigration Reform, And Considering Whether Immigration Regionalism Is An Idea Whose Time Has Come, Ketih Aoki, John Shuford

Fordham Urban Law Journal

No abstract provided.