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2012

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A Neurological Foundation For Freedom, Nita A. Farahany Jan 2012

A Neurological Foundation For Freedom, Nita A. Farahany

Faculty Scholarship

No abstract provided.


Explaining Abuse Of The Disabled Child, Margaret F. Brinig Jan 2012

Explaining Abuse Of The Disabled Child, Margaret F. Brinig

Journal Articles

This article discusses abuse of disabled children in terms of two competing theories for why it may occur. The evolutionary biology theory has been discussed in the legal literature as well as in biological and social science pieces. The author contrasts this theory with a novel one, mimetic desire, which may be less familiar in legal circles, but which, he believes, better explains the abuse of Attention Deficit Hyperactive Disorder children and offers more hope for preventing abuse without disrupting intact families. While the evolutionary biology explanations for child abuse may be helpful and important, more territory can be covered …


Ancillary Discovery To Prove Denial Of Justice, Roger P. Alford Jan 2012

Ancillary Discovery To Prove Denial Of Justice, Roger P. Alford

Journal Articles

Today foreign investors have a new and powerful weapon to challenge denial of justice. Bilateral investment treaties (BITs) require “fair and equitable treatment” consistent with customary international law, including “the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principles of due process embodied in the principle legal systems of the world.” Those treaties also create a private right of action, empowering investors with the right to initiate international arbitral proceedings directly against the host State. BITs provide the substance and the means for the effective review of judicial behavior. These treaties do …


Managing The Urban Commons, Nicole Stelle Garnett Jan 2012

Managing The Urban Commons, Nicole Stelle Garnett

Journal Articles

Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a là Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by …


The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal Jan 2012

The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal

Journal Articles

Nearly all felony convictions - about 95 percent - follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty …


Response: One Market We Do Not Need, Giovanna Shay Jan 2012

Response: One Market We Do Not Need, Giovanna Shay

Faculty Scholarship

The Author responds to Alexander Volokh’s, Prison Vouchers, 160 U. Pa. L. Rev. 779 (2012). She argues that Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive …


Exhausted, Giovanna Shay Jan 2012

Exhausted, Giovanna Shay

Faculty Scholarship

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer’s Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this Article argues that Justice Breyer’s concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with …


Illich (Via Cayley) On Prisons, Giovanna Shay Jan 2012

Illich (Via Cayley) On Prisons, Giovanna Shay

Faculty Scholarship

This Article considers whether, more than a dozen years after publication of Cayley’s book "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.


Inside-Out As Law School Pedagogy, Giovanna Shay Jan 2012

Inside-Out As Law School Pedagogy, Giovanna Shay

Faculty Scholarship

In the fall of 2010, and again in spring 2012, the Author taught a course entitled Gender & Criminal Law inside the Western Massachusetts Correctional Alcohol Center in Springfield. Participants in the course included roughly equal numbers of law students from the Author's home academic institution, Western New England University School of Law, and residents of the facility. For fourteen weeks, the class met weekly at the institution to discuss issues including domestic violence law reform, the role of family ties in sentencing, and gender issues in prisoner reentry. The Author taught this course in a modified form of the …


Davis V. United States: Good Faith, Retroactivity, And The Loss Of Principle, David Mcaloon Jan 2012

Davis V. United States: Good Faith, Retroactivity, And The Loss Of Principle, David Mcaloon

Maryland Law Review

No abstract provided.


The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan Jan 2012

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Maryland Law Review

No abstract provided.


J.D.B. V. North Carolina: An Appropriate Expansion Of Miranda To Account For Age In Juvenile Interrogations, Hanna M. Sheehan Jan 2012

J.D.B. V. North Carolina: An Appropriate Expansion Of Miranda To Account For Age In Juvenile Interrogations, Hanna M. Sheehan

Maryland Law Review

No abstract provided.


Stanley Hauerwas And The Law: Is There Anything To Say - Theological Argument In Law: Engaging With Stanley Hauerwas: Foreword, John D. Inazu Jan 2012

Stanley Hauerwas And The Law: Is There Anything To Say - Theological Argument In Law: Engaging With Stanley Hauerwas: Foreword, John D. Inazu

Scholarship@WashULaw

This essay is the special editor's introduction to a forthcoming symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named "America's Best Theologian" by Time Magazine, and delivered the prestigious Gifford Lectures. He has arguably “articulated the most coherent and influential political theology in and for the North American context” and has been “at the forefront of major transformations in theology” …


Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal Jan 2012

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.


Prosecutors And Professional Regulation, Bruce A. Green Jan 2012

Prosecutors And Professional Regulation, Bruce A. Green

Faculty Scholarship

Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, …


In The Valley Of The Giants: Cultivating Intentionality And Integration, Miriam Carey Jan 2012

In The Valley Of The Giants: Cultivating Intentionality And Integration, Miriam Carey

International Journal for the Scholarship of Teaching & Learning

This study examines the cultivation of intentionality and integration in a foundation level General Education class: Communities and Societies. Three research tasks were set within the context of a grounded theoretical approach: codification of indicators for both intentionality and integration, and an examination of student learning logs. Intentionality was helpfully scaffolded by targeted questions for reflection while integration appeared more spontaneously, apparently as a result of the course design and delivery but also possibly as a result of the nature of free-styling journaling. Learning logs suggested students found full class discussions, continuous small groups, and journaling itself to be the …


Restoring Luster To The Palladium Of Freedom, Wm. T. Robinson Iii Jan 2012

Restoring Luster To The Palladium Of Freedom, Wm. T. Robinson Iii

Kentucky Law Journal

No abstract provided.


Reconsidering State Parole Board Membership Requirements In Light Of Model Penal Code Sentencing Revisions, Stefan J. Bing Jan 2012

Reconsidering State Parole Board Membership Requirements In Light Of Model Penal Code Sentencing Revisions, Stefan J. Bing

Kentucky Law Journal

No abstract provided.


"A Matter Of Grace": Alternatives To Billing Insurance For Sexual Assault Forensic Examinations, Jessica C. Harvey Jan 2012

"A Matter Of Grace": Alternatives To Billing Insurance For Sexual Assault Forensic Examinations, Jessica C. Harvey

Kentucky Law Journal

No abstract provided.


Stepping Into The Gap: Violent Crime Victims, The Right To Closure, And A Discursive Shift Away From Zero Sum Resolutions, Blanche Bong Cook Jan 2012

Stepping Into The Gap: Violent Crime Victims, The Right To Closure, And A Discursive Shift Away From Zero Sum Resolutions, Blanche Bong Cook

Kentucky Law Journal

No abstract provided.


Why We Need A Progressive Account Of Violence, Aya Gruber Jan 2012

Why We Need A Progressive Account Of Violence, Aya Gruber

Publications

No abstract provided.


Incurable Blackness: Criminal Disenfranchisement, Mental Disability, And The White Citizen, Andrew Dilts Jan 2012

Incurable Blackness: Criminal Disenfranchisement, Mental Disability, And The White Citizen, Andrew Dilts

Political Science and International Relations Faculty Works

The Maryland State Constitution states that its General Assembly may, "regulate or prohibit the right to vote of a person convicted of infamous or other serious crime or under care or guardianship for mental disability." In a single sentence, the link between criminality and mental disability is invoked in order to draw an internal boundary around those who can take part in the project of representative government. Through a close reading of one particular moment in the history of Maryland's disenfranchisement provisions, I show how these restrictions could buttress prevailing racial hierarchies. Delegates to Maryland's nineteenth century constitutional conventions explicitly …


Beyond Family Law, Sarah Abramowicz Jan 2012

Beyond Family Law, Sarah Abramowicz

Case Western Reserve Law Review

No abstract provided.


Pathways To Justice: The Movement Of Adult Female Sexual Assault Cases Across The New Hampshire Criminal Justice System, Jill Rockey, Sandra Matheson, Heather Farr Gunnell, Mary R. Mayhew, Sharon Murphy, Katie M. Edwards Jan 2012

Pathways To Justice: The Movement Of Adult Female Sexual Assault Cases Across The New Hampshire Criminal Justice System, Jill Rockey, Sandra Matheson, Heather Farr Gunnell, Mary R. Mayhew, Sharon Murphy, Katie M. Edwards

White Papers and Other PIRC reports

No abstract provided.


When Coercion Lacks Care: Competency To Make Medical Treatment Decisions And Parens Patriae Civil Commitments, Dora W. Klein Jan 2012

When Coercion Lacks Care: Competency To Make Medical Treatment Decisions And Parens Patriae Civil Commitments, Dora W. Klein

Faculty Articles

The subject of this Article is people who have been civilly committed under a state’s parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This …


Misrepresenting Misery: Slaves, Servants, And Motives In Early Virginia, Jamin P. Riley Jan 2012

Misrepresenting Misery: Slaves, Servants, And Motives In Early Virginia, Jamin P. Riley

Browse all Theses and Dissertations

Violence has frequently been connected to the history of slavery. Graphic depictions of slaveowner violence can be found in popular literature and media. The slave experience, especially in the early modern period, should instead be explained to wider public audiences in its totality. The regulation of reproductive and familial rights by slaveowners, the use of sexual punishment, and the permanence of slavery made the enslaved life truly unique, and set it apart from the experiences of other repressed elements of early modern English society, such as the poor. The creation of the slave system and the development of its regulatory …


Students With Felony Convictions In Higher Education: An Examination Of The Effects Of Special Admissions Policies On Applicants And On Campus Communities, Bradley Dean Custer Jan 2012

Students With Felony Convictions In Higher Education: An Examination Of The Effects Of Special Admissions Policies On Applicants And On Campus Communities, Bradley Dean Custer

Browse all Theses and Dissertations

There is limited research documenting the outcomes of college admission policies that screen applicants with prior felony convictions. Without this data, there is no evidence to support that these policies make college campuses safer. Additionally, there is no information available on the effects of special admissions policies on the applicants or on academic performance of students with prior felony convictions. This mixed-method study examined the applications of 54 undergraduate applicants with prior felony convictions at a mid-sized, public institution in the Midwest to reveal demographic trends among the population, to reveal themes from written narratives, and to examine the academic …


Juror Decision Making: The Impact Of Attractiveness And Socioeconomic Status On Criminal Sentencing And An Examination Of Motivated Reasoning In Mock Jurors, Jennifer M. Kutys Jan 2012

Juror Decision Making: The Impact Of Attractiveness And Socioeconomic Status On Criminal Sentencing And An Examination Of Motivated Reasoning In Mock Jurors, Jennifer M. Kutys

Browse all Theses and Dissertations

Individuals are bombarded with stereotypes every day in the United States. It is impossible to eliminate the effect of these stereotypes in any situation; however, the criminal justice system strives to find ways to minimize the impact of these stereotypes in the courtroom. In this study, the effects of socioeconomic status and attractiveness of a female defendant on sentencing severity, perceived recidivism, and deservedness of punishment in a murder trial were examined. The study was also designed to investigate how jurors may engage in cognitive processes such as motivated reasoning when biases are pointed out to them. Attractiveness and socioeconomic …


Response, The Obama Administration, In Defense Of Daca, Deferred Action, And The Dream Act, Shoba S. Wadhia Jan 2012

Response, The Obama Administration, In Defense Of Daca, Deferred Action, And The Dream Act, Shoba S. Wadhia

Faculty Scholarship

This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system …


The Resistance Defense, Jenny E. Carroll Jan 2012

The Resistance Defense, Jenny E. Carroll

Articles

This article explores a previously ignored set of defendants "” those who choose to rely on a defense of resistance From Warren Jeffs the polygamist recently convicted of child rape in Texas to John Brown the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it Though their belief systems varied they appear throughout history in moments of social or political crisis and …