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Subjective Deliberate Indifference: The Correct Standard For Pre-Trial Detainees' Fourteenth Amendment Claims For Inadequate Medical Care, Douglas Weeks 2024 Pace University

Subjective Deliberate Indifference: The Correct Standard For Pre-Trial Detainees' Fourteenth Amendment Claims For Inadequate Medical Care, Douglas Weeks

Pace Law Review

This article examines the legal standard of “subjective deliberate indifference” as it pertains to the Fourteenth Amendment claims of pre-trial detainees facing inadequate medical care. With the Supreme Court’s evolving interpretation of constitutional protections for incarcerated individuals, this piece argues that subjective deliberate indifference offers a more appropriate framework for evaluating the state’s duty to provide adequate medical treatment. By analyzing relevant case law, including the significant distinctions between pre-trial detainees and convicted prisoners, the article highlights the necessity of considering the mental state of correctional officials in medical negligence claims. Furthermore, it explores the implications of this standard on …


Death By Jury: Jurisprudential Trends And Hybrid Capital Sentencing Authority, Jacob T. Hayes 2024 University of Tennessee College of Law

Death By Jury: Jurisprudential Trends And Hybrid Capital Sentencing Authority, Jacob T. Hayes

Tennessee Journal of Law and Policy

No abstract provided.


The Costs Of The Vexatious Lawyer: Who Bears Responsibility?, Jayanth K. Krishnan 2024 Indiana University Maurer School of Law

The Costs Of The Vexatious Lawyer: Who Bears Responsibility?, Jayanth K. Krishnan

Articles by Maurer Faculty

This Article investigates how the law should respond to a lawyer who engages in unprofessional, tormenting, or what is often referred to as “vexatious” conduct during litigation. At present, a federal law – 28 U.S.C. §1927 – allows courts to issue sanctions upon a vexatious lawyer. When such a lawyer works for a law firm, a deep split has emerged among the circuits. Some courts have ruled that law firms may also be liable for their lawyers’ actions under the statute. Other circuits, though, have concluded that law firms are free from this type of vicarious liability. Unfortunately, the problem …


A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby 2024 University of Maine School of Law

A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby

Maine Law Review

The federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of …


Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen 2024 University of Maine School of Law

Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen

Maine Law Review

Perhaps in no other field of judicial endeavor is diversity and variety more apparent than when a sentencing judge considers the circumstances presented by a defendant convicted of a criminal offense. In each case, the sentencing judge confronts an individual who has no exact counterpart in any defendant previously appearing before the court for sentencing. The sentence imposed is primarily a matter of judicial discretion and is based upon consideration of the nature of the offense, the circumstances surrounding the commission of the offense, and the circumstances of the defendant. The sentencing judge formulates a specific sentence within broad statutory …


State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron 2024 University of Maine School of Law

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …


The Problem Of Third-Party Consent In Fourth Amendment Searches: Toward A "Conservative" Reading Of The Matlock Decision, Robert Deschene 2024 University of Maine School of Law

The Problem Of Third-Party Consent In Fourth Amendment Searches: Toward A "Conservative" Reading Of The Matlock Decision, Robert Deschene

Maine Law Review

In United States v. Matlock, the United States Supreme Court delivered its most recent and comprehensive statement on the doctrine of third-party consent. Under the doctrine, police may search a defendant's home or effects without first obtaining a judicially issued search warrant. Instead of this traditional prerequisite for a valid fourth amendment search, the police need only have the voluntary consent of a third person who possesses "common authority" over or a "sufficient relationship" to the area to be searched. At that point, the defendant's own consent becomes largely irrelevant. Both the United States and Maine constitutions provide protection against …


Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead In United States V. Chatrie, Jordan Wallace-Wolf 2024 University of Arkansas at Little Rock William H. Bowen School of Law

Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead In United States V. Chatrie, Jordan Wallace-Wolf

Washington and Lee Law Review Online

In United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the …


State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron 2024 University of Maine School of Law

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …


The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez 2024 University of Maine School of Law

The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez

Maine Law Review

In any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors …


The Problem With Direct Collateral Review, Jaden M. Lessnick 2024 Pepperdine University

The Problem With Direct Collateral Review, Jaden M. Lessnick

Pepperdine Law Review

Federal habeas review of state convictions is sharply circumscribed for a reason: Granting the writ of habeas corpus disrupts the federalism and finality interests that lie at the heart of state sovereignty over criminal law. Both the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Supreme Court’s equitable bars to relief reflect the structural dangers inherent in collateral review of state convictions. Given the increasing unavailability of federal habeas relief, state prisoners have turned to another vehicle for collateral federal review, one that bypasses AEDPA’s demanding standard: direct review of state post-conviction proceedings. And regrettably, the Court has entertained …


A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover 2024 Northwestern Pritzker School of Law

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …


The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes 2024 University of Washington School of Law

The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes

Washington Law Review

Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one’s civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials …


The Co-Optation Of Restorative Justice And Its Consequences For An Abolitionist Future, Alicia Virani 2024 William & Mary Law School

The Co-Optation Of Restorative Justice And Its Consequences For An Abolitionist Future, Alicia Virani

William & Mary Journal of Race, Gender, and Social Justice

This Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities …


Gendered Capital Punishment, Sandra Babcock 2024 Cornell Law School

Gendered Capital Punishment, Sandra Babcock

William & Mary Journal of Race, Gender, and Social Justice

This Article, for the first time, grapples with the influence of gender on decision makers in women’s capital trials. Part I provides a brief overview of scholarship examining the experiences of women offenders in the criminal legal system. Part II explains how gender inflects the prosecutions of women charged with capital crimes, drawing on scholarly research as well as a data set comprised of the trial transcripts of every woman currently on death row in the United States. Part III explores how the gender of key decision makers could affect the quality of justice received by women capital defendants. I …


Grasping The Third Rail: Restorative Justice And Violent Crime, Olwyn Conway 2024 The Ohio State University Moritz College of Law

Grasping The Third Rail: Restorative Justice And Violent Crime, Olwyn Conway

Washington and Lee Law Review

Restorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and …


The Importance Of Policing, Stephen Rushin 2024 Loyola University Chicago School of Law

The Importance Of Policing, Stephen Rushin

South Carolina Law Review

No abstract provided.


White Monsters: Understanding Whiteness As Social And Legal Monstrosity, Steven Sacco 2024 AFSC Immigrant Rights Program

White Monsters: Understanding Whiteness As Social And Legal Monstrosity, Steven Sacco

Cardozo Journal of Equal Rights & Social Justice

The article argues that whiteness operates as a socially and legally constructed monstrosity, perpetuating systemic inequality and destructive power through both intentional and nonintentional mechanisms. By employing monster theory, the analysis reveals how whiteness adapts and evolves to maintain its dominance, often through legal frameworks that obscure its harmful effects. The Supreme Court's decision in Plyler v. Doe, while advancing justice in some aspects, also exemplifies how the law can perpetuate inequality by overlooking historical and social contexts.


Greater Of Two Evils: Trial Penalty Or Plea Penalty?, Breanne Potter 2024 Yeshiva University, Cardozo School of Law

Greater Of Two Evils: Trial Penalty Or Plea Penalty?, Breanne Potter

Cardozo Journal of Equal Rights & Social Justice

The article critiques the prevalence of plea bargaining in the U.S. criminal justice system, arguing that while it is often seen as a necessary evil for efficiency, it undermines constitutional rights and perpetuates injustice. The author introduces the concept of the "plea penalty," which refers to the significant and often overlooked consequences of accepting a guilty plea, such as the loss of rights and long-term collateral consequences. The article challenges the notion that the trial penalty—harsher sentences for those who go to trial—is the only concern, emphasizing that the plea penalty can be equally detrimental. It advocates for systemic reforms …


Not Just Mercy: Governors Should Use The Executive Clemency Power As A Corrective Tool For Mass Incarceration, Laura Tierney 2024 Benjamin N. Cardozo School of Law

Not Just Mercy: Governors Should Use The Executive Clemency Power As A Corrective Tool For Mass Incarceration, Laura Tierney

Cardozo Journal of Equal Rights & Social Justice

The note argues that state governors should revive the use of executive clemency as a corrective tool to address mass incarceration and its disproportionate impact on communities of color. Executive clemency, which includes pardons, commutations, and sentence reductions, offers a means to provide immediate relief and promote social justice. The author emphasizes the historical roots of clemency as a check on the criminal justice system and advocates for its use to reduce prison populations and counteract the legacy of punitive policies.


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