Law Commons^™

The Mob Lawyer's Constitution, Sara Mayeux

Vanderbilt Law School Faculty Publications

This article reconstructs the constitutional rhetoric of mob lawyers, as well as drug lawyers and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s-the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them. Drawing upon pop-culture sources including archival television footage, magazine features, newspaper coverage, and ghost-written mass-market memoirs, the article pieces together the constellation of soundbites through which mob lawyers disseminated their views. As the subjects of frequent media coverage, these lawyers advanced a coherent and distinctive (if crude) set of ideas about the proper relationship between individuals, …

Creating A People-First Court Data Framework, Lauren Sudeall, Charlotte S. Alexander

Vanderbilt Law School Faculty Publications

Most court data are maintained--and most empirical court research is conducted--from the institutional vantage point of the courts. Using the case as the common unit of measurement, data-driven court research typically focuses on metrics such as the size of court dockets, the speed of case processing, judicial decision-making within cases, and the frequency of case events occurring within or resulting from the court system.

This Article sets forth a methodological framework for reconceptualizing and restructuring court data as "people-first"-centered not on the perspective of courts as institutions but on the people who interact with the court system. We reorganize case-level …

Historicizing The War(S) On Drugs Across National (And Disciplanary) Borders, Sara Mayeux

Vanderbilt Law School Faculty Publications

Notwithstanding the title, The War on Drugs: A History, this illuminating book is not "a" history of "the" War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.

But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the "carceral state." …

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Law School Faculty Publications

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Criminal Injustice, Edward Rubin

Vanderbilt Law School Faculty Publications

As its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. …

Detecting Mens Rea In The Brain, Owen D. Jones, Read Montague, Gideon Yaffe

Vanderbilt Law School Faculty Publications

What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?

If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization …

Misdemeanor Appeals, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in ten thousand misdemeanor convictions and disturb only one conviction or sentence out of every ten thousand misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain. To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review …

Integrating The Access To Justice Movement, Lauren Sudeall

Vanderbilt Law School Faculty Publications

Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement - who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define "justice," and whether it would apply only to the civil justice system. Although the phrase "access to justice" is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in the interpretation is an opportunity to engage …

Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons

Vanderbilt Law School Faculty Publications

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of …

The Idea Of "The Criminal Justice System", Sara Mayeux

Vanderbilt Law School Faculty Publications

The phrase "the criminal justice system " is ubiquitous in discussions of criminal law, policy, and punishment in the United States-so ubiquitous that, at least in colloquial use, almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic "system, " became pervasive only in the 1960s. This essay contextualizes the idea of "the criminal justice system" within the longer history of systems theories more generally, drawing on recent scholarship in intellectual history and the history of science. The essay then recounts how that longer history converged, …

The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright

Vanderbilt Law School Faculty Publications

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …

Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property …

Empirical Desert And Preventive Justice: A Comment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay is a response to an article by Paul Robinson, Joshua Barton, and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in Its Place, which was itself an analysis of several works published by Robinson and various coauthors making the case for "empirical desert." Robinson's suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on …

Medical Marijuana And The Political Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Medical marijuana has emerged as one of the key federalism battlegrounds of the last two decades. Since 1996, sixteen states have passed new laws legalizing the drug for certain medical purposes.' All the while, the federal government has remained committed to zero-tolerance, prohibiting the possession, cultivation, and distribution of marijuana for any purpose.2 The federal government's uncompromising stance against medical marijuana seemingly exposes the states' vulnerability to the whims of the national political process, and it has inspired calls for the courts to step in and protect state experimentation from this and other instances of arguable congressional over-reaching.

Economics, Behavioral Biology, And Law, Owen D. Jones, Erin O'Hara O'Connor, Jeffrey Evans Stake

Vanderbilt Law School Faculty Publications

The article first compares economics and behavioral biology, examining the assumptions, core concepts, methodological tenets, and emphases of the two fields. Building on this, the article then compares the applied interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other - highlighting not only the most important similarities, but also the most important differences.

The article subsequently explores ways that biological perspectives on human behavior may prove useful, by improving economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps …

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the …

The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux

Vanderbilt Law School Faculty Publications

In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …

Realism, Punishment, And Reform, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law School Faculty Publications

Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue.

As we demonstrate, they have misunderstood our views on, and thus the implications of, widespread agreement about punishing the "core" of wrongdoing. Although much of their …

Intuitions Of Punishment, Owen D. Jones, Robert Kurzban

Vanderbilt Law School Faculty Publications

Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.

Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.

Experts, Mental States, And Acts, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal justice system, derived in the federal courts and in most states from Daubert v. Merrell Dow Pharmaceuticals Co., should vary depending on whether the issue involved is past mental state or past conduct. While expert psychological testimony about past acts ought to be based on scientifically verifiable assertions, expert psychological testimony about subjective mental states relevant to criminal responsibility need not meet the same threshold. This …

The Origins Of Shared Intuitions Of Justice, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law School Faculty Publications

Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result?

The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, …

Subpoenas And Privacy, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are "relevant" to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides an …

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to …

The Structure Of Expertise In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay, part of a two-issue symposium on the implications of Daubert v. Merrell Dow Pharmaceuticals and its progeny, is built around three propositions about expert testimony and criminal cases. First, the "Daubert trilogy's" focus on verifiability as the threshold for expert testimony pushes the criminal justice system away from the notion that knowledge is socially constructed and toward a positivist epistemology that assumes we can know things objectively. Second, in the long run, that development will be good for prosecutors and bad for criminal defendants, given the different types of expertise on which they rely. Third, the consequence of …

The Integrationist Alternative To The Insanity Defense: Reflections On The Exculpatory Scope Of Mental Illness In The Wake Of The Andrea Yates Trial, Christopher Slobogin

Vanderbilt Law School Faculty Publications

On June 20, 2001, Andrea Yates took the lives of her five children by drowning them, one by one, in a bathtub. At her trial on capital murder charges nine months later, she pleaded insanity. Despite very credible evidence that she had long suffered from serious mental disorder, a Texas jury convicted Yates of murder and sentenced her to life in prison. Her tragic and controversial case led many to question whether the so-called "M'Naghten" test for insanity, which forms the basis for the insanity defense in Texas, adequately defines the exculpatory effect of mental disorder. This article is based …

The Origins Of Felony Jury Sentencing In The United States, Nancy J. King

Vanderbilt Law School Faculty Publications

All of the states admitted to the Union by 1800 eventually abandoned capital punishment for most felonies in favor of discretionary terms of imprisonment. But of these states, only Virginia, Kentucky, and Georgia adopted jury sentencing. In 1786, Pennsylvania became the first state to adopt discretionary terms of hard labor and imprisonment as the primary punishment for felony offenses-delegating to judges the authority to select those terms. In 1796, Virginia opted for jury sentencing, while New York followed Pennsylvania's lead. After 1796, with both Pennsylvania's judge sentencing and Virginia's jury sentencing models to choose from, New Jersey and all of …

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …

An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self-defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast …