Criminal Procedure Commons^™

No Standing And No Recourse: The Threat To Employee Data Under Current U.S. Cybersecurity Regulation, Georgia D. Reid

Touro Law Review

No abstract provided.

Confrontation In The Age Of Plea Bargaining, William Ortman

Scholarly Works

A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s witnesses. This Essay argues that the Supreme Court should align its Confrontation Clause jurisprudence with the reality of contemporary criminal justice. The Sixth Amendment grants a criminal defendant the right …

Benevolent Exclusion, Anna Offit

Faculty Publications

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity …

The Bivens "Special Factors" And Qualified Immunity: Duplicative Barriers To The Vindication Of Constitutional Rights, Amelia G. Collins

University of Richmond Law Review

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Criminal Procedure: Confessions, Searches, And Seizures, Barbara Parker Hervey, Carson Guy, Alexander R. Comsudi

SMU Annual Texas Survey

This article is a survey of the relevant developments in criminal procedure law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

Prosecutors And Mass Incarceration, Shima Baradaran Baughman, Megan Wright

Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott

Articles

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, …

Incorporation By Any Other Name? Comparing Congress' Federalization Of Tribal Court Criminal Procedure With The Supreme Court's Regulation Of State Courts, Jordan Gross

Faculty Law Review Articles

This Article examines the different experience of states and tribes with uniform national standards of criminal procedure imposed by the federal government. Part I describes the federal government’s displacement of indigenous justice in service of colonialist political goals, a policy that has contributed to the public safety crisis in Indian country today. Part II explains the constitutional criminal procedure jurisprudence the Court developed for states on which Congress has modeled ICRA’s criminal procedure provisions. In TLOA and VAWA 2013, Congress recognized that restoring tribal autonomy over wrongdoing in Indian country must be part of the federal policy response to the …

Surveillance And The Tyrant Test, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recog- nition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academ- ics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the tech- nology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Donna Coker, Thalia Gonzalez

Articles

No abstract provided.

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

Scholarly Works

Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

A Taxonomy Of Police Technology’S Racial Inequity Problems, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Over the past several years, increased awareness of racial inequity in policing, combined with increased scrutiny of police technologies, have sparked concerns that new technologies may aggravate inequity in policing. To help address these concerns, some advocates and scholars have proposed requiring police agencies to seek and obtain legislative approval before adopting a new technology, or requiring the completion of “algorithmic impact assessments” to evaluate new tools.

In order for policymakers, police agencies, or scholars to evaluate whether and how particular technologies may aggravate existing inequities, however, the problem must be more clearly defined. Some scholars have explored inequity in …

Racial Bias Still Exists In Criminal Justice System? A Review Of Recent Empirical Research, Yu Du

Touro Law Review

The debate on whether racial bias is still embedded in the criminal justice (CJ) system today has reached its plateau. One recent article in the Washington Post has claimed an overwhelming evidence of racial bias in the CJ system. Whereas some scholars argue that racial disparity is an epitome of real crime rates, others indicate that implicit and/or explicit racial bias against Blacks held by law enforcement agents persists in the system. This review considers both supporting arguments and relevant counterarguments. After evaluating empirical and rigorous research during the past five years, the review maintains that racial bias still exists …

Memory, Moral Reasoning, And Madison V. Alabama, Elias Feldman

Touro Law Review

No abstract provided.

He Said, She Said: Plausible Pleadings For Reverse Title Ix Claims, James Bunster

Touro Law Review

No abstract provided.

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy …

Monitoring The Misdemeanor Bail Reform Consent Decree In Harris County, Texas, Brandon L. Garrett, Sandra Guerra Thompson

Faculty Scholarship

No abstract provided.