Law Commons^™

Managing Fear-Based Derogation In Murder Trials, John Rafael Perez

Journal of Legislation

No abstract provided.

Prosecutorial Accountability 2.0, Bruce Green, Ellen Yaroshefsky

Notre Dame Law Review

This Article describes the rhetorical and regulatory changes that characterize

the new prosecutorial accountability, identifies the conditions that

have enabled them to occur, and considers their implications. While identifying

various necessary conditions, the Article argues that information technology

has been the essential catalyst; the evolution could not be sustained

without the aggregation, accessibility, and communication of data and commentary

about prosecutorial misconduct that new information technology

makes readily available to the public. Given the permanence of information

technology in modern society, the Article concludes by cautiously predicting

that the contemporary regulatory movement will be sustained; the pendulum

will not swing …

Police Body-Worn Camera Policy: Balancing The Tension Between Privacy And Public Access In State Law, Kyle J. Maury

Notre Dame Law Review

Body camera implementation remains in its infancy stage. As such,

there is a dearth of legal scholarship analyzing the policy considerations associated

with body cameras. Instead of raising the issues involved and assessing

arguments for and against implementation, this Note assumes body cameras

are a force for good and are here to stay for the long haul. Consequently, the

goal of this Note is to analyze various issues involved in administering body

cameras against a backdrop of recently enacted state legislation—focusing

specifically on the tension between protecting privacy interests while also

ensuring public access to recordings. This Note examines these …

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Notre Dame Law Review

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion of how …

Corporate Criminal Minds, Mihailis E. Diamantis

Notre Dame Law Review

In order to commit the vast majority of crimes, corporations must, in some sense, have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. As a result, they saddle themselves with unjustifiable theories of mental state attribution, like respondeat superior, that produce results wholly at odds with all the major theories of the objectives of criminal law.

This Article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea that would better allow corporate criminal law to fulfill its deterrent, retributive, and …

Juvenile Justice Reform In Texas: The Context, Content & Consequences Of Senate Bill 1630, Sara A. Gordon

Journal of Legislation

No abstract provided.

Ohio V. Clark , Peter M. Torstensen Jr.

Notre Dame Law Review Reflection

The heart of the debate over the purpose of the Confrontation Clause is the manner in which confrontation was intended to secure a defendant’s rights—either through procedural fairness or ensuring evidentiary reliability. The eventual direction the Supreme Court takes will depend, in large part, on which of these visions of the Confrontation Clause ultimately prevails. Michigan v. Bryant marked a potential step in the direction of the Ohio v. Roberts vision, and Ohio v. Clark does not appear to have departed from the course set in Bryant. Thus, while Crawford v. Washington marked a sea change in the Court’s confrontation …

The Promises And Perils Of Evidence-Based Corrections, Cecelia Klingele

Notre Dame Law Review

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called “evidence-based practices” designed to reduce prison populations and their associated fiscal …

Police Culture In The Twenty-First Century: A Critique Of The President's Task Force's Final Report, Julian A. Cook Iii

Notre Dame Law Review Reflection

In response to a series of events involving police-citizen encounters, including those in Ferguson, Missouri, and Staten Island, New York, that have strained relations between law enforcement and the communities (primarily minority) that they serve, President Barack Obama established a task force charged with developing a set of recommendations designed to improve police practices and enhance public trust. Headed by Charles Ramsey, Commissioner of the Philadelphia Police Department, and Laurie Robinson, former Assistant Attorney General for the U.S. Department of Justice Office of Justice Programs, and currently a Professor of Criminology, Law, and Society at George Mason University, the eleven-member …

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Notre Dame Law Review

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in …

Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo

Journal of Legislation

This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.

A Code-Based Approach To Unauthorized Access Under The Computer Fraud Abuse Act, Patricia L. Bellia

Journal Articles

Thirty years ago, Congress passed the Computer Fraud and Abuse Act (CFAA) to combat the emerging problem of computer crime. The statute’s core prohibitions targeted one who “accesses” a computer “without authorization” or who “exceeds authorized access.” Over time, incremental statutory changes and large-scale technical changes have dramatically expanded the potential scope of the CFAA. The question of what constitutes unauthorized access has taken on far greater significance than it had thirty years ago, and courts remain deeply divided on this question. This Article explores the text, purpose, and history of the CFAA, as well as a range of normative …