Law Commons^™

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

Rethinking Place Of Business As Choice Of Law In Class Action Lawsuits, Allison M. Gruenwald

Vanderbilt Law Review

In the past century, businesses have come to operate on a national and often global level. In the past century, the United States has seen an enormous nationalization and even globalization of business. As a result, the actions of a single company increasingly have the potential to affect people far beyond the boundaries of that company's home state. When one or a few companies injure large numbers of consumers across the country, aggregate litigation (namely the class action lawsuit) becomes an especially attractive remedy. Aggregating claims allows plaintiffs to save time and money and may also enable them to present …

Rethinking Place Of Business As Choice Of Law In Class Action Lawsuits, Allison M. Gruenwald

Vanderbilt Law Review

In the past century, businesses have come to operate on a national and often global level. In the past century, the United States has seen an enormous nationalization and even globalization of business. As a result, the actions of a single company increasingly have the potential to affect people far beyond the boundaries of that company's home state. When one or a few companies injure large numbers of consumers across the country, aggregate litigation (namely the class action lawsuit) becomes an especially attractive remedy. Aggregating claims allows plaintiffs to save time and money and may also enable them to present …

Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller

All Faculty Scholarship

Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA's actions, and the federal government's support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA's actions could be constrained by the Constitution. While it is clear that USADA has very close ties to the federal …

Reconceptualizing Due Process In Criminal Justice: Contributions From Law And Social Science, Christopher Slobogin

ExpressO

This article challenges the accepted wisdom, at least since the Supreme Court’s decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …

Official Indiscretions: Considering Sex Bargains With Government Informants, Susan S. Kuo

Faculty Publications

This article addresses an alarming new investigatory practice employed by law enforcement officials: requiring arrestees to carry out sexual tasks as confidential informants. Requiring arrestee informants to engage in sexual activities in exchange for a reduction or possible elimination of criminal penalties they might otherwise incur raises constitutional concerns. Informants can and do accept a variety of investigative assignments. But, as this article shows by drawing on sociological research, sex tasks differ fundamentally from more conventional informant undertakings. The importance of this distinction is that while adult individuals undoubtedly can provide consent to sexual matters, the validity of such consent …

Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson

Faculty Scholarship

Child services caseworkers adhere to the belief that, in the absence of prosecution, the only remedy for protecting a child harmed by a parent is to remove the child from her home. The effect of this often is to leave the alleged perpetrator in the household with the victim's siblings. Using sexual violence as an example, this Comment contends the evidence of potential risk for the remaining children is so overwhelming that, as a matter of policy, an adult who violates one child should be removed from the household. Parents who commit incest rarely stop with one child. Ignoring such …

Richard Sheppard Arnold: A Distinguished Jurist, A Loyal Colleague And A Good Friend, Gerald W. Heaney

University of Arkansas at Little Rock Law Review

No abstract provided.

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …

Purposeless Restraints: Fourteenth Amendment Rationality Scrutiny And The Constitutional Review Of Prison Sentences, Michael P. Oshea

ExpressO

This Article presents an analysis and defense of the Supreme Court's current Eighth Amendment case law on prison sentencing. I argue that in the pivotal cases of Ewing v. California and Harmelin v. Michigan, a plurality of the Supreme Court has assimilated Eighth Amendment review of individual prison sentences to rationality review of state action under the Fourteenth Amendment's due process clause. When the cases are read rightly, it becomes clear that Eighth Amendment review does not really ask whether a sentence is "grossly disproportionate," as the Court has asserted; rather, it seeks to identify arbitrary and capricious prison sentences …

Certifying Mandatory Punitive Damages Classes In A Post-Ortiz And State Farm World, Aileen L. Nagy

Vanderbilt Law Review

Punitive damages are a civil penalty "aimed at deterrence and retribution" that further the state's interest in punishing unlawful conduct.' They are meant to "sting" and should be imposed proportionally according to the "egregiousness of the harm and the wealth of the transgressor." While compensatory damages are intended to compensate plaintiffs for their concrete losses, punitive damages use the plaintiff as an instrument for "visiting [] punishment upon [the] extreme tortious misdeeds" of defendants. As such, it is well settled that no individual plaintiff is entitled to punitive damages; however, "it is equally true that no transgressor is entitled to …

Major Lenders' May Violate Due Process By Enforcing One-Sided Arbitration Contracts To Avoid Borrowers' Defenses To Foreclosure, Lynn E. Cunningham

ExpressO

ARTICLE SUMMARY: Many major, contemporary players in the huge sub-prime U.S. mortgage lending market require their borrowers to execute loan agreement riders requiring arbitration of all disputes with regard to the loan transaction, but with the significant exception of the lender’s right to foreclose. While such agreements have frequently been challenged on unconscionability grounds, enforcement of the ex parte aspects of such contracts also raises concerns about compliance with procedural aspects of the Due Process Clause, when either lender enforcement of the loan agreement itself or foreclosure is sought through the courts. Foreclosure normally occurs more promptly than arbitration, and …

The Irrational Supreme Court, Michael I. Meyerson

All Faculty Scholarship

Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting …

The Little Word "Due", Andrew T. Hyman

Andrew T. Hyman

The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, …

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

Scholarly Works

Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …

Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong

Faculty Publications

This paper argues that Liberia owes a duty under international law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the various warring parties in the course of 14 years of brutal conflict. The authors evaluate the options for prosecution, starting with the possible use of Liberian courts. They argue that even if willing, the national courts are unable to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

Dignity In Race Jurisprudence, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Racial justice demands dignity; the acknowledgment and affirmation of the equal humanity of people of color. Denying dignity on the basis of color creates racial subordination, which triggers dignitary harms such as individual acts of racism and communal exclusion leading to diminished health, wealth, income, employment and social status. The legal recognition of dignity is therefore a prerequisite to political and social equality. For Americans of African descent, dignity was long denied by the legal endorsement of slavery and the degrading policies of segregation. The struggle to be treated equally human eventually found success in landmark cases such as Brown …

The Executive's Scapegoat, The Court's Blind Eye? Immigrants' Rights After September 11, Hollis V. Pfitsch

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

A Question Of Fairness: The Proper Standard Of Review Of School Board Just And Reasonable Cause Determinations In Teacher Termination Proceedings In Idaho, John E. Rumel

Articles

No abstract provided.

Balancing Judicial Economy, State Opportunism, And Due Process Concerns In The Wto, Ana Frischtak

Michigan Journal of International Law

This Note will focus on an aspect of the dispute settlement proceeding that has not been officially proposed for reform: the withdrawal of and amendments to measures being challenged by a complaining Member during the course of the proceedings. This aspect raises issues of judicial economy, state opportunism, and due process. In particular, this practice, where the respondent country to a dispute withdraws or amends the measure being challenged during the course of proceedings, threatens to undermine the legitimacy of the dispute settlement system as a fair and transparent adjudicating body.

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

'Oh Lord, Please Don't Let Me Be Misunderstood!': Rediscovering The Mathews V. Eldridge And Penn Central Frameworks, Gary S. Lawson

Faculty Scholarship

Mathews v. Eldridge, which addresses the procedures that must be provided for deprivations of life, liberty, or property under the Due Process Clauses, and Penn Central Transportation Co. v. City of New York, which guides inquiry into when governmental regulations rise to the level of takings of property that require just compensation, are decisions with near-canonical status. Mathews and Penn Central have some noteworthy parallels. Each decision is widely regarded as prescribing a three-factor test for resolving questions that arise under its respective domain. Each decision is almost universally decried as unworkable, incomplete, subjective, and incapable of consistent application. And …

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

All Faculty Scholarship

No abstract provided.

Immigration: Mind Over Matter, Shoba Sivaprasad Wadhia

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Towards Balancing A New Immigration And Nationality Act: Enhanced Immigration Enforcement And Fair, Humane And Cost-Effective Treatment Of Aliens, Christopher Nugent

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?