Law Commons^™

Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie

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This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …

Taming Negotiated Justice, Stephanos Bibas

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After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed …

Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii

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No abstract provided.

Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman

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Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts …

The Qualified Immunity Doctrine In The Supreme Court: Judicial Activism And The Restriction Of Constitutional Rights, David Rudovsky

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No abstract provided.

The Court Acknowledges The Illegitimate: Levy V. Louisiana And Glona V. American Guarantee & Liability Insurance Co., John C. Gray Jr., David Rudovsky

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No abstract provided.