Law Commons^™

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

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No abstract provided.

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

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As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

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Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

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No abstract provided.

The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine

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This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced disciplinary rules addressing …

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

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Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

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In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

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Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

The Role Of Defense Counsel In Ensuring A Fair Justice System, Richard Klein

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Supreme Court decisions are replete with statements about how crucial it is to have a defense attorney represent the person who is accused of crime. Defense counsel may accurately be considered law enforcers. While representing a lone individual against all the power of the state, counsel must “police the police” to determine if there has been an unconstitutional search, a coerced confession, an unlawfully suggestive lineup, or the fabrication of testimony. Defense counsel must attempt to ensure that the prosecutor is adhering to the professional requirement not merely to convict, but to do justice and comply with his obligations to …

Peacemaking & Provocation: A Response To Professor Tracey Jean Boisseau, Dan Subotnik

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No abstract provided.

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

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Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

The Death Of Suspicion, Fabio Arcila Jr.

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This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

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No abstract provided.

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

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A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

A Response To Professor Steinberg’S Fourth Amendment Chutzpah, Fabio Arcila

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Professor David Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether …

An Analysis Of Rule 11 Plea Bargain Options, S. Crincoli (Sigman)

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No abstract provided.

(Un)Luckey V. Miller: The Case For A Structural Injunction To Improve Indigent Defense Services, Rodger D. Citron

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No abstract provided.

(Un)Luckey V. Miller: The Case For A Structural Injunction To Improve Indigent Defense Services, Rodger D. Citron

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No abstract provided.

The Crime Victim’S "Right" To A Criminal Prosecution: A Proposed Model Statute For The Governance Of Private Criminal Prosecution, Peter L. Davis

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The thesis of this article is that the public prosecutor should to have a monopoly on criminal prosecutions; some supplementary system of private criminal prosecution should be available. Two such systems, or models, currently exist in New York. The first model, available statewide, theoretically allows a complainant to initiate a non-felony criminal prosecution without any screening by a prosecutor or judge. This system is unwise, unworkable and illusory because it obscures the exercise of judicial discretion and focuses the court’s attention on the wrong issues, usually precluding the crime victim’s complaint. The second model, limited by statute to New York …