Law Commons^™

Ai-Based Evidence In Criminal Trials?, Sabine Gless, Fredric I. Lederer, Thomas Weigend

Faculty Publications

Smart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system.

Mercy For The Masses: A Default Rule For Automatically Triggered Commutations, Adam Gershowitz

Faculty Publications

This Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.

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This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts …

Principles Of Prosecutor Lenience, Jeffrey Bellin

Faculty Publications

[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.

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This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. …

Gender (Discrimination) Trouble, Katharine K. Baker

South Carolina Law Review

No abstract provided.

A Model State Compensation Law For The Wrongfully Convicted, Jacqueline Kamel

Journal of Legislation

No abstract provided.

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

More Than Friends: A New Theory For The Third-Party Doctrine, Eang L. Ngov

American University Law Review

When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of …

The Procedural Justice Industrial Complex, Shawn E. Fields

Indiana Law Journal

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …

Compassionless Plea Bargaining, Julian A. Cook Iii

UF Law Faculty Publications

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant’s change of plea decision. Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing. Compassionless Plea Bargaining seeks to fill this gap with its focus on a …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Exploring The Factors That Influence Female Offending In The U.S. And Mexico, Dana Villasenor

CMC Senior Theses

Hollywood has painted a picture of the criminal woman as a sexy, sneaky, and often psychotic female fatale. This is because men run Hollywood. Much like movies, research on why women offend had historically focused on men as their stellar. However, towards the turn of the century and with the disproportionate rise in female incarceration, literature caught up to the fact that women and men do not experience the same socialization, standards, or reality and, therefore, have different reasons for and ways of offending. This research explores those reasons for women in the U.S. and Mexico and paints the picture …

From The Barrel To The Border: Exploring The Roots And Ramifications Of Gun Trafficking From The United States To Mexico, Alexandra Punishill

CMC Senior Theses

Nowhere is the discussion surrounding gun violence more prominent than in the United States, with the impacts of our gun-friendly culture being felt around the world. This thesis analyzes the dynamics of gun trafficking from the United States to Mexico and sheds light on its role in fueling the epidemic of gun violence south of the border. It is argued that the particular system of federalism adopted by the United States has led to a variety of state-level gun regulations that have shaped domestic gun policy and have had an international impact. Despite Mexico’s persistent efforts to combat the gun …

Mental Health Education Law: A Statutory Shift Of Responsibility To K-12 Students?, Henry Yat-Shing Kwan

Public Interest Law Reporter

No abstract provided.

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

Police Diversity Theory, Trevor George Gardner

Journal of Criminal Law and Criminology

In light of both the tragic death of Tyre Nichols in Memphis at the hands of Black police officers and the mixed results of studies of Black same-race policing, this Article proposes a conceptual framework by which to better understand the utility of police diversity. The framework maps the relational possibilities among three factors: (i) the Black officer’s approach to same-race policing; (ii) the Black officer’s performance in the context of same-race policing; and (iii) the policing priorities of the Black communities the Black officer is taken to represent.

Responsive to the conceptual framework for police diversity theory, the Article …

The Effects Of Jurisdictional Variances On Rates Of Rape Offenses: How Differing Jurisdictional Definitions Contribute To America’S Rape Culture, David Lopez-Herrera

Theses and Dissertations

This study examines the relationship between jurisdictional definitions of rape and rape offense rates across various states in the U.S., with the goal of proposing a standardized federal definition to enhance consistency in data collection and improve the efficacy of legal responses. Despite extensive research on rape, no prior studies have explored the impact of jurisdictional definition variances on state rape offense rates. This seminal study aimed to fill this gap by analyzing the correlation between state-specific rape definitions and reported rape offenses, utilizing a theoretical breakdown of definitions into eight components and a rubric for evaluation.

The analysis revealed …

A Law At War With Itself: Character Evidence And The Doctrine Of Chances, Len Niehoff, Shannon Hickey

Articles

Certain legal principles have raging within them a kind of civil war. Important but abstract policy concerns pull the doctrine in one direction; common sense and practical experience pull it in another. Casualties ensue.

Perhaps no body of legal doctrine better exemplifies this sort of internal conflict than the general ban on character evidence, as embodied in Federal Rule of Evidence 404(a)(1). That rule states: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait.” The rule has deep roots in the …

The Joy Of The Fight: What Litigators Can Learn From The Martial Arts, Len Niehoff, Tim Lynch

Articles

You walk into a martial arts training studio (in Japanese styles, a dojo) and you scan the room. Everything going on here looks, well, unpleasant. In one corner, you observe a group of students performing kata, choreographed sequences of kicks, punches, and blocks that simulate the experience of fighting multiple opponents. Sweat pours off them. In another corner, you see two students engaged in sparring exercises, or kumite. The sharp, smacking noise of one student striking the protective pads worn by another carries across the room. In a third corner, you notice students doing push-ups, working their muscles until their …

A Critical Assessment Of The First Step Act's Recidivism-Reduction Measures, Raquel Wilson

Law Faculty Scholarly Articles

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

The Myth Of The Guilty Suspect: Confession, Narrative, And Political Assent, Susan L. Tanner

Mitchell Hamline Law Review

No abstract provided.

Racial Disparities In Plea Bargaining: An Examination Of Coercive Dynamics In The Negotiation Process, Naszya Iman Heidi Bradshaw

Scripps Senior Theses

This research addresses the enduring concerns about the ethical and legal intricacies of coercion in plea bargaining within the U.S. criminal justice system, with a focus on its correlation with racial disparities. This study acknowledges an existing research gap in comprehending the subtle dynamics of coercion and its differential impact on Black and Latin individuals. By employing the Cumulative Disadvantage Theory and Dual Processing Theory, the research aims to investigate the differential susceptibility to coercion during plea bargaining among individuals from Black and Latin communities compared to their white counterparts. Variables such as the severity of criminal charges, the quality …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …