Legal Studies Commons^™

Beyond The Guantánamo Bind: Pragmatic Multilateralism In Refugee Resettlement, Melissa (M.J.) Durkee

Scholarship@WashULaw

The international refugee protection system is under threat. States weary of increased refugee flows and preoccupied with national security increasingly exploit legal gaps or avoid refugee law altogether. The U.S. approach to resettlement of Guantánamo detainee refugees exemplified this trend. Yet, in the Guantánamo context, U.S. avoidance of international refugee law put the executive in a bind that it could not easily escape: Because the U.S. executive was unwilling to assume the political cost of resettling the refugee detainees domestically, it resorted to peddling them for resettlement to foreign states while, at the same time, mounting a robust legal defense …

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

Between Liberalism And Theocracy, John D. Inazu

Scholarship@WashULaw

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to …

Lessons From Forty Years Of Interference In Law School Clinics, Robert R. Kuehn, Bridget M. Mccormack

Scholarship@WashULaw

Recently, there have been a number of well-publicized attacks on law school clinics over their legal representation of unpopular individuals and organizations, which brings them in opposition to powerful business and political interests. This article analyzes the effects of forty years of publicized interference in law school clinics on law clinic attorneys and clinical legal education, and the lessons that can be drawn from this extended history. The article includes a typology of outside interference in clinics, provides empirical support for the negative effects of this interference on the attitudes and actions of clinic attorneys, and argues that there are …

Government Interference With Law School Clinics And Access To Justice: When Is There A Legal Remedy?, Peter A. Joy

Scholarship@WashULaw

This article analyzes government interference in law school clinical programs and suggests some legal remedies that may be available to challenge such interference.

The Progressive Presidency And The Shaping Of The Modern Executive, Andrea Scoseria Katz

Scholarship@WashULaw

The contemporary presidency, with its expanded foreign policy, administrative and public duties, is largely a brainchild of the Progressive Era. The Progressives envisioned an enlarged executive, one outside the original guidelines of the U.S. Constitution, which they deemed “archaic,” “undemocratic,” and unsuited to the demands of the modern age, in which mass capitalism dislocated, alienated and disenfranchised the common man. The Progressives wanted to bring about a more energetic, streamlined, and unified state at the helm of which stood the presidency, an office of popular leadership and swift action. To accommodate this new, active figure, some Progressives believed it necessary …

A New Uniform Code Of Consumer Credit, Danielle D'Onfro

Scholarship@WashULaw

This Essay provides an overview and criticism of predatory lending laws then proposes a new Uniform Code of Consumer Credit (UCCC) to work alongside the Truth in Lending Act. The proposed UCCC would provide a complete and behaviorally informed system of consumer financial protection that strives to keep credit affordable and to encourage innovative credit products. The Essay argues that a uniform law will create sufficient state-to-state consistency to reduce the need for federal preemption and thereby bring the benefits of federalism - protection from agency capture, legislative responsiveness and experimentation at the state level - into consumer financial protection. …

Rationing Justice By Rationing Lawyers, Peter A. Joy

Scholarship@WashULaw

The number of lawyers in the United States continues to increase, but low and middle-income persons still find it difficult, if not impossible, to afford legal assistance. National and state surveys reveal that more than 80 percent of the civil legal needs of the poor go unmet, as do a majority of the needs of middle-income persons. Legal representation can often dramatically increase a person’s ability to win at trial or to negotiate a favorable outcome, and the lack of access to lawyers effectively closes the courthouse doors for millions. This Article focuses on the crisis in Missouri's public defender …

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

The Multiple-Stage Process Of Judicial Review: Facial And As-Applied Constitutional Challenges To Legislation Before The U.S. Supreme Court, Stefanie A. Lindquist, Pamela C. Corley

Scholarship@WashULaw

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the …

Judicial Dialogue In Roper: Signaling The Court’S Emergence As A Transnational Legal Actor? A Response To Professor Mark Tushnet, Melissa A. Waters

Scholarship@WashULaw

Professor Mark Tushnet contends that Roper v. Simmons is consistent with a long line of U.S. Supreme Court precedent utilizing foreign authority in constitutional interpretation. Given this consistency, he asserts that the controversy over Roper, "must rest on something new in constitutional discourse," and finds the, "something new," in two sources: The rise of originalism and renewed, "concern for the place of the United States in the modern international order."

This response essay suggests two additional sources for the controversy over Roper. First is the emerging transnational judicial dialogue among the world's constitutional courts on human rights issues, and the …

Vicki C. Jackson, Constitutional Engagement In A Transnational Era, Melissa A. Waters

Scholarship@WashULaw

This essay reviews and critiques Vicki C. Jackson's book on constitutional engagement and comparative constitutional law.

Over the past decade, the debate over the use of foreign authority in interpreting the U.S. Constitution has fallen prey to an unfortunate “Crossfire” phenomenon, reminiscent of the old (and much maligned) CNN news commentary program. Serious discourse on this important issue has been obscured by an increasingly rancorous public debate in the news media, the blogosphere, and even before Congress. In this Crossfire debate, it seems, everyone must “choose up sides.” So-called “nationalists” deplore even most modest citations to foreign authority in constitutional …

The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …

The Relative Recoverability Of Dna And Rna Profiles From Forensically Relevant Body Fluid Stains, Charly Parker

Electronic Theses and Dissertations

Biological material (fluids or tissues) whether from the victim or suspect is often collected as forensic evidence, and methods to obtain and analyze the DNA found in that material have been well established. The type of body fluid (i.e. blood, saliva, semen, vaginal secretions, and menstrual blood) from which the DNA originated is also of interest, and messenger RNA typing provides a specific and sensitive means of body fluid identification. In order for mRNA profiling to be utilized in routine forensic casework, RNA of sufficient quantity and quality must be obtained from biological fluid stains and the methods used for …

The Function Of Indigenous Law In A Modern Economic And Political State: The Cameroon Scenario, Victoria M. Time

Sociology & Criminal Justice Faculty Publications

Using Cameroon as a case study, this research examines if a legal system built primarily upon indigenous laws can serve modern economic, political, and social realities. Indigenous laws have several attractive advantages (such as expediency in dispute resolution, and fostering community cohesiveness), and may fully thrive in a homogenous society. However, after examining the realities in Cameroon, the study concludes that since the society has dozens of tribes with values and traditions which are invariably different, and because the country relies on foreign aid, what is advocated is a system whereby indigenous and formal laws co-exist.

Studying Rape Through A Theorectical Lens: The Development Of A Serial Rape Model Using Fbi Data, Brooke Smith

Open Access Theses & Dissertations

The current study assessed whether there is an empirical foundation for different theories of rape including the feminist, evolutionary, social disorganization, psychopathy, and rapist type theories. Using a data set from the Federal Bureau of Investigation (FBI) on serial rapists collected in the early 1990's, the study included two phases. The first phase assessed whether FBI data supported the previously mentioned theories of rape by analyzing associations between individual variables that are thought to support each theory. Support was demonstrated for the evolutionary and psychopathy theories. Using MPlus statistical software to accommodate the multi-level nature of the data, the second …

A Multilevel Model Of Police Corruption: Anomie, Decoupling, And Moral Disengagement, Ruth Zschoche

USF Tampa Graduate Theses and Dissertations

Police corruption is a primary concern for law enforcement agencies. The purpose of this study was to identify factors that could predict the likelihood of police officer susceptibility to corruption. Data was collected through surveys of 1083 officers within eight U.S. police agencies that were participating in the National Police Research Platform funded by the National Institute of Justice. The data were analyzed using multilevel structural equation and base multilevel models.

The theoretical model for this study addressed susceptibility to corruption on both the departmental (clusters) and individual officer levels. Four main constructs were utilized in this study. Acceptance of …

Mental Health Courts Effectiveness In Reducing Recidivism And Improving Clinical Outcomes: A Meta-Analysis, Brittany Cross

USF Tampa Graduate Theses and Dissertations

Mental health courts have recently emerged with goals to reduce recidivism and improve clinical outcomes for people with serious mental illness in the criminal justice system. The present study is a review of mental health court literature assessing their effectiveness in reducing recidivism and improving clinical outcomes for participants using meta-analytic techniques. A total of 20 studies that included sufficient information to compute the standardized mean difference effect size, focused on adult populations, and were within the United States were included in the analysis. Only experimental and quasi-experimental research designs were obtained. Using Cohen’s d (1988) guidelines, mental health courts …

Reconceptualizing Present-Value Analysis In Consumer Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

During the three decades following the enactment of the Bankruptcy Code, courts and commentators have been vexed by the problem of determining the present value of future payments to creditors proposed in a debtor’s repayment plan. The central issue to this problem has been the discount rate to be applied when conducting present-value analysis. While the Code unmistakably requires the discounting of future payments as part of the process for confirming a repayment plan, the Code does not explicitly specify the rate itself or the manner in which the rate should be calculated. No uniform rule of decision has emerged …

Assessing Racial Differences In Offending Trajectories: A Life-Course View Of The Race-Crime Relationship, Michael S. Caudy

USF Tampa Graduate Theses and Dissertations

The developmental and life-course criminology (DLC) paradigm has become increasingly popular over the last two decades. A primary limitation of this paradigm is the lack of consideration of race and ethnicity within its framework. Race unquestionably matters in today's society and yet it has generally been ignored within the context of DLC theories. The current study aims to contribute to the literature informing DLC by viewing life-course theories through the lens of race and ethnicity. Utilizing nationally-representative data from the National Longitudinal Survey of Youth 1997, the current study examines race-specific developmental trajectories of offending over 11 years during the …