Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (47)
- Criminal Law (37)
- Criminal Procedure (34)
- Supreme Court of the United States (22)
- Labor and Employment Law (16)
-
- Social and Behavioral Sciences (15)
- Evidence (14)
- International Law (14)
- Courts (13)
- Law Enforcement and Corrections (13)
- Civil Rights and Discrimination (12)
- Fourth Amendment (12)
- Jurisprudence (12)
- Human Rights Law (10)
- Law and Philosophy (10)
- Law and Society (10)
- State and Local Government Law (10)
- Fourteenth Amendment (9)
- Health Law and Policy (9)
- Law and Gender (9)
- Legislation (9)
- Comparative and Foreign Law (8)
- Law and Economics (8)
- Arts and Humanities (7)
- Contracts (7)
- First Amendment (7)
- Military, War, and Peace (7)
- Public Affairs, Public Policy and Public Administration (7)
- Business Organizations Law (6)
- Institution
-
- University of Michigan Law School (70)
- Selected Works (11)
- Touro University Jacob D. Fuchsberg Law Center (11)
- SelectedWorks (10)
- University of Pennsylvania Carey Law School (9)
-
- William & Mary Law School (8)
- Fordham Law School (6)
- University of Richmond (4)
- Boston University School of Law (3)
- Seattle University School of Law (3)
- St. Mary's University (3)
- U.S. Naval War College (3)
- University of Colorado Law School (3)
- University of Georgia School of Law (3)
- Vanderbilt University Law School (3)
- California Western School of Law (2)
- Chicago-Kent College of Law (2)
- Florida State University College of Law (2)
- Maurer School of Law: Indiana University (2)
- Northwestern Pritzker School of Law (2)
- Notre Dame Law School (2)
- Saint Louis University School of Law (2)
- University of Massachusetts School of Law (2)
- University of Miami Law School (2)
- University of Missouri School of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- University of Wollongong (2)
- BLR (1)
- Case Western Reserve University School of Law (1)
- City University of New York (CUNY) (1)
- Publication Year
- Publication
-
- Michigan Law Review (38)
- Articles (19)
- All Faculty Scholarship (9)
- Faculty Scholarship (8)
- Touro Law Review (8)
-
- Faculty Publications (6)
- Scholarly Works (6)
- William & Mary Law Review (5)
- Dale Thompson (4)
- Michigan Journal of International Law (4)
- University of Michigan Journal of Law Reform (4)
- University of Richmond Law Review (4)
- Book Chapters (3)
- Fordham Urban Law Journal (3)
- International Law Studies (3)
- Journal Articles (3)
- Seattle University Law Review (3)
- Chicago-Kent Law Review (2)
- Faculty Articles (2)
- Florida State University Law Review (2)
- Fordham Law Review (2)
- Georgia Journal of International & Comparative Law (2)
- Indiana Law Journal (2)
- Michigan Journal of Gender & Law (2)
- Saint Louis University Law Journal (2)
- Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11) (2)
- Alison Hill (1)
- Ann Bartow (1)
- Articles & Book Chapters (1)
- Cornell Law Faculty Publications (1)
- Publication Type
- File Type
Articles 1 - 30 of 192
Full-Text Articles in Law
The Coercion Of The Trial Penalty, Kristen C. Akin
The Coercion Of The Trial Penalty, Kristen C. Akin
Student Theses
Prosecutors, defendants, and defense attorneys must make decisions as to whether to accept a plea offer or proceed to trial every day. Approximately 95% of state and federal convictions result from guilty pleas (Redlich et al., 2017; Thaxton, 2013; Gazal-Ayal & Tor, 2012; Redlich & Shteynberg, 2016; Edkins, 2011; Weatherly & Kehn, 2013; Helm et al., 2018; Gregory et al., 1978). Some estimate this number to be as high as 97% to 99% (Redlich & Bonventre, 2015; Helm et al., 2018). It is also estimated that every two seconds a defendant pleads guilty (Redlich & Bonventre, 2015). In 1980, 19% …
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin L. Sheley
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin L. Sheley
Faculty Scholarship
Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminal defenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological …
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley
Journal of Criminal Law and Criminology
Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon …
Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli
Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli
Duke Journal of Constitutional Law & Public Policy Sidebar
Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in …
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Touro Law Review
No abstract provided.
Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli
Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli
All Faculty Scholarship
Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the …
Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall
Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall
Touro Law Review
Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Articles
The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …
The 'Authority' Of Law: Joseph Raz Reconsidered, Andrew Stumpff Morrison
The 'Authority' Of Law: Joseph Raz Reconsidered, Andrew Stumpff Morrison
Law & Economics Working Papers
The article presents a critical reassessment of the legal philosophical writings of Joseph Raz. The critique develops from the author’s previous argument that law is – contra recent near-consensus – best understood as “the command of the sovereign, backed by force.” Given that this is the distinctly defining feature of law, Raz’s extended preoccupation with “reasons for obeying law” is misplaced and even nonsensical.
Christianity And Bankruptcy, David A. Skeel Jr.
Christianity And Bankruptcy, David A. Skeel Jr.
All Faculty Scholarship
Although the term “bankruptcy” is nowhere to be found in the Bible, debt and the consequences of default are a major theme both in the Hebrew Bible and in the New Testament. In Israel, as in the ancient Near East generally, a debtor who defaulted on his obligations was often sold into slavery or servitude. Biblical law moderated the harshness of this system by prohibiting Israelites from charging interest on loans to one another, thus diminishing the risk of default, and by requiring the release of slaves after seven years of service. Jesus alluded to the lending laws at least …
Coercion And Choice Under The Establishment Clause, Cynthia V. Ward
Coercion And Choice Under The Establishment Clause, Cynthia V. Ward
Cynthia V. Ward
In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …
Economic Hardship As Coercion Under The Protocol On International Trafficking In Persons By Organized Crime Elements, Linda A. Malone
Economic Hardship As Coercion Under The Protocol On International Trafficking In Persons By Organized Crime Elements, Linda A. Malone
Linda A. Malone
No abstract provided.
Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill
Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill
Indiana Law Journal
Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …
Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver
Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver
Russell L. Weaver
This paper deals with the issue of "reliability" in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found "innocent" of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions …
Custodial Compulsion, Kyron J. Huigens
Custodial Compulsion, Kyron J. Huigens
Articles
In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …
Powerful Speakers And Their Listeners, Helen Norton
Powerful Speakers And Their Listeners, Helen Norton
Publications
In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …
Cooperative Rape, Gabriel M. Glasser
The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh
The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh
Robert B. Ahdieh
We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.
Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …
Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin
Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin
Michigan Law Review Online
Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in related areas …
Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay
Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay
Articles & Book Chapters
Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal sanctions …
Preemption And Commandeering Without Congress, Jessica Bulman-Pozen
Preemption And Commandeering Without Congress, Jessica Bulman-Pozen
Faculty Scholarship
In a time of polarization, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples.
Consent And Coercion, Kimberly Kessler Ferzan
Consent And Coercion, Kimberly Kessler Ferzan
All Faculty Scholarship
There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.
This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the …
Democracy, Law, Compliance, Don Herzog
Democracy, Law, Compliance, Don Herzog
Articles
Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.
How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen
How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen
All Faculty Scholarship
From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether …
Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe
Georgia Journal of International & Comparative Law
No abstract provided.
Why Arrest?, Rachel A. Harmon
Why Arrest?, Rachel A. Harmon
Michigan Law Review
Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as …
Collective Coercion, Benjamin Means, Susan S. Kuo
Collective Coercion, Benjamin Means, Susan S. Kuo
Faculty Publications
When a collective-choice situation places coercive pressure on individual participants, the law’s traditional protection of individual autonomy against coercion must be reconciled with its necessary role in resolving problems of collective action. On the one hand, the law might seek to remove coercion from the equation so that individuals are free to make their own decisions. On the other hand, the law might empower a central authority to decide, thereby solving a problem of collective action in order to maximize the group’s shared interests.
The tension between these two approaches creates deep uncertainty for the regulation of collective-choice situations. It …
Of Swords, Shields, And A Gun To The Head: Coercing Individuals, But Not States, Aviam Soifer
Of Swords, Shields, And A Gun To The Head: Coercing Individuals, But Not States, Aviam Soifer
Seattle University Law Review
This Article begins with a brief reprise of what should be a textual “gotcha” about the Enforcement Clauses of the post-Civil War Amendments—if our current Supreme Court Justices actually cared about original texts, originalism, or a combination of the two. Next, the Article focuses on the gnarled issue of “coercion.” It argues that, contrary to a great deal of Anglo-American legal doctrine, coercion is best understood along a spectrum rather than as a binary phenomenon. Coercion is actually much contested and highly contextual across many legal categories. Federal coercion—also described as commandeering or dragooning— has become a particular constitutional focus …
The Thirteenth Amendment At The Intersection Of Class And Gender: Robertson V. Baldwin’S Exclusion Of Infants, Lunatics, Women, And Seamen, James Gray Pope
The Thirteenth Amendment At The Intersection Of Class And Gender: Robertson V. Baldwin’S Exclusion Of Infants, Lunatics, Women, And Seamen, James Gray Pope
Seattle University Law Review
In Robertson v. Baldwin, the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings. These cases suggest that Robertson’s categorical exclusion is …
A Positive Right To Free Labor, Rebecca E. Zietlow
A Positive Right To Free Labor, Rebecca E. Zietlow
Seattle University Law Review
This Article seeks to resurrect a lost thread in our civil rights tradition: the idea that workers have a positive right to free labor. A positive right to free labor includes the right to work for a living wage free of undue coercion and free from discrimination based on immutable characteristics. Not merely the negative guarantee against the state’s infringement on individual equality and liberty, a positive right to free labor is immediately enforceable against state and private parties. A positive right to free labor is rooted in the Thirteenth Amendment of the Constitution, which prohibits slavery and involuntary servitude …