Law Commons^™

Evolving Standards Of Irrelevancy?, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse

All Faculty Scholarship

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20^th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

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In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

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Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

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

All Faculty Scholarship

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 …

The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Presuming Lawyers Competent To Protect Fundamental Rights: Is It An Affordable Fiction?, Robert G. Lawson

Law Faculty Scholarly Articles

This article explores the ramifications of Wainwright v. Sykes, a case decided before the Supreme Court of the United States in 1977. The broad question before the Court in Sykes concerned the extent to which state prisoners should have access to federal court by use of the writ of habeas corpus. The narrow issue before the Court concerned the impact on a prisoner's claim for habeas relief of procedural defaults (such as a failure to object to evidence, a failure to perfect an appeal, etc.) that occur in the state proceeding under attack. In considering these important issues Justice …