Digital Commons Network^™

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Publications

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach—unequal allocation of peremptory challenges to prosecution and defense—and yet many state legislatures have recently abandoned asymmetry, with some legislators declaring …

It's Alive!: How Early Common Law Changes In The Right Against Self-Incrimination Inform The Right's Continuing Relevance, Sheldon Evans

Faculty Publications

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article …

The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, …

Using Principles From Cognitive Behavioral Therapy To Reduce Nervousness In Oral Argument Or Moot Court, Larry Cunningham

Faculty Publications

Sarah, a new attorney at a public defender’s office, is assigned to the appeals bureau. Ordinarily, Sarah spends her days researching and writing briefs, talking with clients, and brainstorming legal issues with colleagues. Today, however, she opened the mail to find a notice from the court setting a date for her first oral argument. She suffers the first of several anxiety attacks: rapid heart rate, racing thoughts, shortness of breath, sweaty palms, nausea, and feelings of panic and tension. As she reads the form letter, her hands tremble. This is the day she has dreaded. She loves to write and …

The Making Of A Libertarian, Contrarian, Nonobservant, But Self-Identified Jew, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Many academics are unaware that I am Jewish, no doubt due, in part, to my last name as well as to my politics, Yet growing up as a Jew in Polish-Catholic Calumet City, Illinois and as a kid from Calumet City attending Temple in Hammond, Indiana made me quite conscious of the tyranny of the majority. This environment, together with the influence of my father, had a deep affect on my views of liberty, justice, individual rights, and the U.S. Constitution. In this brief essay, prepared for a symposium on “Judaism and Constitutional Law: People of the Book,” held at …

Arendt On The Crime Of Crimes, David Luban

Georgetown Law Faculty Publications and Other Works

Genocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her …

Prison Abolition And Grounded Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address—interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law—principally deterrence, incapacitation, rehabilitation, and …

Explaining Race Gaps In Policing: Normative And Empirical Challenges, Sonja Starr

Law & Economics Working Papers

This piece explores the many kinds of quantitative claims that researchers and commentators regularly make about race and policing. Everyone agrees that there are enormous racial gaps in U.S. rates of stops, arrests, searches, and use of force. But there are dramatically conflicting claims as to why. Policing is hard to study, but the problem isn‟t just the data shortcomings with which the literature has long struggled. It‟s confusion about what questions we should be asking. Different kinds of numerical comparisons and research designs often imply sharply differing conceptions of what racial equality in policing means. These normative premises often …

Are Prosecutors The Constitution's Gatekeepers?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

You Might Have Drugs At Your Command: Reconsidering The Forced Drugging Of Incompetent Pre-Trial Detainnes From The Perspectives Of International Human Rights And Income Inequality, Michael L. Perlin, Meredith Schriver

Articles & Chapters

Ever since the Supreme Court's 2003 decision in Sell v. United States, 539 U.S. 166 (2003), there has been a cottage industry of commentary on the question of whether the state can medicate an incompetent defendant for the purpose of making him or her competent to stand trial. Moreover, there have been multiple cases interpreting Sell broadly and narrowly, both in the context of medication issues and in the context of other treatments. Because of the vagueness of certain terminology, questions such as what a "serious" crime is, what "substantially" meant to the Court in Sell, and how the least …

One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood

Articles & Chapters

No abstract provided.

Privacy And Court Records: An Empirical Study, David S. Ardia, Anne Klinefelter

Faculty Publications

No abstract provided.

Post-Sentencing Appellate Waivers, Kevin Bennardo

Faculty Publications

No abstract provided.

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

Reducing Racial And Ethnic Disparities In Jails: Recommendations For Local Practice, Jessica M. Eaglin, Danyelle Solomon

Books & Book Chapters by Maurer Faculty

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial …

Towards More Efficient Service For Clients, Using Hmis System: Managerial Audit Of Community Technology Alliance, Mohua Chatterjee

Master's Projects

No abstract provided.

Office Of Criminal Justice Programs Annual Report 2013-2014, Tennessee. Department Finance & Administration.

Office of Criminal Justice Programs

No abstract provided.

Tennessee Office Of Criminal Justice Programs Fy 2015 Statewide Strategy For Drug And Violent Crime Control And Criminal Justice System Improvement Update, Tennessee. Department Finance & Administration.

Office of Criminal Justice Programs

No abstract provided.

Tennessee Office Of Criminal Justice Programs Strategy For Victim Services Fy 2015, Tennessee. Department Finance & Administration.

Office of Criminal Justice Programs

No abstract provided.

Women With Disabilities Who Have Been Sexually Assaulted: What Responders Need To Know, Kaitlyn Mccarthy

Browse all Theses and Dissertations

Information about women with disabilities who have been sexually assaulted is vastly missing from psychological research and literature. This gap in literature is very concerning as more information is needed to ensure that women with disabilities are receiving care, and that prevention and care giving programs are tailored to meet their needs. Women with disabilities encounter unique sexual assault experiences that at times go unnoticed because their experiences are not often discussed in the literature, nor are they appropriately assessed. Through a Participatory Action Research (PAR) approach, the present study attempted to respond to these issues by modifying an existing …

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Political Science Faculty Works

No abstract provided.

Methods Of Policing: Deviation From The Standard Model Of Policing And Measured Effectiveness, Elena Stamm

Williams Honors College, Honors Research Projects

The Standard Model of Policing is the original method of crime control put into place to increase the effectiveness of policing. However, there have been questions about whether or not the standard model has proven to be of any real effect. Since that time, researchers have sought a different model of policing that would prove more effective in crime reduction. This research seeks to analyze whether or not the methods developed are actually shown to be effective, through their study.

The Misallocation Of Federal Funds In The U.S. Child Welfare System, Lauren A. Brown

Williams Honors College, Honors Research Projects

This research paper will explore the impact that the federal financing structure has on the child welfare system in the United States. First, a historical policy analysis of the changing goals of child welfare and an overview of the current federal funding structure will be provided. Subsequently, the consequences of having a changing system with an unchanging funding structure will be explored. Finally, proposed solutions will be explored in terms of their impact on the field of child welfare as well as society as a whole. Unfortunately, antiquated federal programs are being used to fund progressive and innovative child welfare …

Tactical Medicine: An Examination Of Medical Training In Law Enforcement, Brian J. Woods Jr.

Williams Honors College, Honors Research Projects

In recent years, there has been a trend towards making law enforcement officers more well-rounded first responders by increasing their required medical competencies. The required medical competencies of six law enforcement agencies of varying sizes in Northeast Ohio were examined by interviews conducted with a representative from each agency. Interview question topics included information on current training requirements and the types of medical equipment issued to officers. The study found that all six of the agencies surveyed offered medical training to officers as part of required continuing education, and all six agencies currently issued, or planned to issue in the …

Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans

Cornell Law Faculty Publications

The jury in the United States is fraught with paradoxes. Even though the number of jury trials in the United States continues to decline, jury trials play a prominent role in American culture and continue to occupy headlines in newspapers and top stories on television. Americans might not always agree with the verdict that any given jury renders, but they continue to express their support for the jury system in poll after poll. This Symposium of the Chicago-Kent Law Review presents new theories and research, with a focus on the contemporary American jury. The Introduction begins by connecting discussions at …

Applying Problem-Of-Practice Methods From The Discipline Of Higher Education Within The Justice System: Turning The Concept Of Therapy Dogs For Child Victims Into A Statewide Initiative., Jessie Holton

Electronic Theses and Dissertations

This Dissertation-in-Practice introduces a law enforcement concept-to-practice model designed by combining tested methods of organizational analysis often utilized by those in the discipline of education. The model incorporates a two phase design with the first phase focusing on implementing and evaluating innovative changes within a medium size law enforcement agency for a micro-level analysis. A second phase examines the ability to replicate the concept program on a statewide, macro-level, by incorporating a re-design method utilizing organizational resource and structure frames. The concept applied to this model was the introduction of a therapy dog interaction during investigations involving crimes against children …

Judges As Gatekeepers To Mediation: The Russian Case, Kathryn Hendley

Cardozo Journal of Conflict Resolution

In this Article, I investigate the role of judges in mediation in Russia. Using a mixed-methods approach that draws on my fieldwork in Russian courts as well as a 2013 survey of Russian judges, I explore their attitudes towards mediation and their willingness to recommend it to litigants. I use the survey data to inquire into the factors that tend to predict both their attitudes and behavior vis-avis mediation. The analysis reveals a remarkable division between judges' attitudes and their behavior. The surveyed judges are generally enthusiastic about the introduction of mediation, but this enthusiasm is not always reflected in …

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia González

Cardozo Journal of Conflict Resolution

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …