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De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin 2013 University of Colorado Law School

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Publications

Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. . . . [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the …


Prostitution 3.0?, Scott R. Peppet 2013 University of Colorado Law School

Prostitution 3.0?, Scott R. Peppet

Publications

This Article presents an entirely novel approach to prostitution reform focused on incremental market improvement facilitated by information law and policy. Empirical evidence from the economics and sociology of sex work shows that new, Internet-enabled, indoor forms of prostitution may be healthier, less violent, and more rewarding than traditional street prostitution. This Article argues that these existing "Prostitution 2.0" innovations have not yet improved sex markets sufficiently to warrant legalization. It suggests that creating a new "Prostitution 3.0" that solves the remaining problems of disease, violence, and coercion in prostitution markets is possible, but would require removing legal barriers to …


Neofeminism, Aya Gruber 2013 University of Colorado Law School

Neofeminism, Aya Gruber

Publications

Today it is prosaic to say that "feminism is dead." Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman's experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These "neofeminists" prioritize women's issues but maintain a strong commitment to distributive justice and recognize …


Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell 2013 University of Colorado Law School

Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell

Publications

Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …


Law 799: Clinical Practice-Criminal—A Peer Review Of Teaching Project Benchmark Portfolio, Steven Schmidt 2013 University of Nebraska-Lincoln

Law 799: Clinical Practice-Criminal—A Peer Review Of Teaching Project Benchmark Portfolio, Steven Schmidt

UNL Faculty Course Portfolios

This portfolio provides a broad overview of my teaching of Law 799. It not only gives the reader an understanding of the goals I have for the course, but also how I endeavor to reach those goals. Finally, through the use of student assessment, this portfolio provides insight as to whether my goals were reached and to what degree. Thus, the portfolio serves to inform me of areas needing improvement.


The Leonard Peltier Case: An Argument In Support Of Executive Clemency Based On Norms Of International Human Rights, Joseph Ezzo 2013 University of Oklahoma College of Law

The Leonard Peltier Case: An Argument In Support Of Executive Clemency Based On Norms Of International Human Rights, Joseph Ezzo

American Indian Law Review

No abstract provided.


Prison Is Prison, Brooke Coleman 2013 Seattle University School of Law

Prison Is Prison, Brooke Coleman

Faculty Articles

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and …


Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts 2013 Seattle University School of Law

Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts

Faculty Articles

Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror …


Review Of Colin Dayan’S The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, Dean Spade 2013 Seattle University School of Law

Review Of Colin Dayan’S The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, Dean Spade

Faculty Articles

Professor Dean Spade reviews Colin Dayan’s The Law Is a White Dog: How Legal Rituals Make and Unmake Persons.


Freeing Morgan Freeman: Expanding Back-End Release Authority In American Prisons, Frank O. Bowman III 2013 University of Missouri School of Law

Freeing Morgan Freeman: Expanding Back-End Release Authority In American Prisons, Frank O. Bowman Iii

Faculty Publications

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific. First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus. Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on …


The Future Of The International Criminal Court: Complimentarity As A Strength Or A Weakness?, Linda Carter 2013 Pacific McGeorge School of Law

The Future Of The International Criminal Court: Complimentarity As A Strength Or A Weakness?, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.


Witness Recantation Study: Preliminary Findings, Alexandra E. Gross, Samuel R. Gross 2013 University of Michigan Law School

Witness Recantation Study: Preliminary Findings, Alexandra E. Gross, Samuel R. Gross

Other Publications

In September 2012, the National Registry of Exonerations began a research study of all the cases in our database that involve post-conviction recantations by witnesses or victims. This is the first systematic study of recantations ever conducted. Its purpose is to identify patterns and trends among these cases, with a particular focus on the circumstances that first elicit the false testimony, and on the official reactions to the recantations by judges and other authorities. Our data set includes all the cases in the Registry as of February 28, 2013 – a total of 1,068 cases, 250 of which involve recantations. …


The Poverty Defense, Michele E. Gilman 2013 University of Baltimore School of Law

The Poverty Defense, Michele E. Gilman

All Faculty Scholarship

Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant's mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty's coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent …


Expanding Rape Shield Laws: Breaking Through Prejudice For Better Protection Of Battered Women, Sarah C. Ayres 2013 Missouri Columbia School of Law

Expanding Rape Shield Laws: Breaking Through Prejudice For Better Protection Of Battered Women, Sarah C. Ayres

Cardozo Journal of Equal Rights & Social Justice

The article argues for the expansion of rape shield laws to civil cases involving orders of protection, asserting that the exclusion of evidence regarding consensual sex between a victim and her abuser is crucial to counteract prejudicial stereotypes and provide better legal protection for battered women.


Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams 2013 Newman Law Firm P.A.

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.


Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker 2013 Saint Louis University School of Law

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

All Faculty Scholarship

This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …


The Case Against The Case Against The Death Penalty, Chad W. Flanders 2013 Saint Louis University School of Law

The Case Against The Case Against The Death Penalty, Chad W. Flanders

All Faculty Scholarship

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions …


Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. McCrary 2013 University of Georgia School of Law

Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. Mccrary

Georgia Law Review

If prisoners are required by federal law to exhaust
institutional remedies before they may file suit in federal
court, should a prisoner with a legitimate claim suffer
dismissal by the federal court if the statute of limitations
lapses during the time the prisoner spends exhausting
administrative remedies? The Prisoner Litigation Reform
Act (PLRA) of 1996 offers no guidance. Federal courts
may choose to apply equitable tolling to a prisoner's claim
should this predicament arise, saving it from dismissal
based on tardiness, but nothing requires the court to do so.
The PLRA's enigmatic exhaustion requirement has
engendered much litigation, and the …


Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh 2013 Florida International University College of Law

Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh

Faculty Publications

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence “to prosecute those who bear the greatest responsibility” for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …


Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts 2013 Allard School of Law at the University of British Columbia

Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts

All Faculty Publications

There is an epistemic crisis in many areas of forensic science. This crisis emerged largely in response both to the mobilization of a range of academic commentators and critics and the rise and influence of DNA typing. It gained popular and authoritative support through the influence of the National Academy of Science (NAS) and a surprisingly critical report produced under its auspices by a committee of the National Research Council (NRC). Interestingly, as this article endeavors to explain, the courts themselves seem to have played a rather indirect, inconsistent and ultimately ineffective role in the supervision and evaluation of forensic …


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