Law Commons^™

The Shadow Bargainers, Jenny Roberts, Ronald F. Wright, Betina Cutaia Wilkinson

Articles in Law Reviews & Other Academic Journals

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This Article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the "shadow of the trial." This is a theory that some defenders embrace and others reject. Describing the factors they believe …

Making A Declaration: The Rise Of Declaratory Judgment Actions And The Insurer As Regulator In The Fight To End Sex Trafficking In The Hotel Industry, Lori N. Ross

Faculty Scholarship

No abstract provided.

Symposium: Expanding Compassion Beyond The Covid-19 Pandemic, Jenny Roberts

Articles in Law Reviews & Other Academic Journals

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be "greater than necessary" to achieve the ends of justice.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

All Faculty Scholarship

No abstract provided.

Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Madden Dempsey

Working Paper Series

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers

Faculty Scholarship

No abstract provided.

Punishment As Contract, Claire Oakes Finkelstein

All Faculty Scholarship

This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

Conflicts Of Interest In Criminal Cases: Should The Prosecution Have A Duty To Disclose?, Anne Poulin

Working Paper Series

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of …

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

Faculty Articles and Other Publications

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the …

New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices, Stephanos Bibas, Jennifer Blasser, Keith A. Findley, Ronald F. Wright, Jennifer E. Laurin, Cookie Ridolfi

All Faculty Scholarship

No abstract provided.

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan

Working Paper Series

Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another self." Forgiving, the …

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime.

I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s …

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

Presidential Authority And The War On Terror, Joseph W. Dellapenna

Working Paper Series

Immediately after the attacks on the United States of September 11, 2001, President George W. Bush claimed, among other powers, the power to launch preemptive wars on his own authority; the power to disregard the laws of war pertaining to occupied lands; the power to define the status and treatment of persons detained as “enemy combatants” in the war on terror; and the power to authorize the National Security Agency to undertake electronic surveillance in violation of the Foreign Intelligence Surveillance Act. With the exception of the power to launch a preemptive war on his own authority (for which he …