A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, 2019 University of Massachusetts School of Law - Dartmouth
A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan
There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott to Lochner to Roe v. Wade to Citizens United, and even the recent Second Amendment decisions of Heller and McDonald, these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...
Individualized Sentencing, 2019 University of Mississippi School of Law
Individualized Sentencing, William W. Berry
Washington and Lee Law Review
In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept ...
The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, 2019 Cedarville University
The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt
Channels: Where Disciplines Meet
How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of ...
American Courts And The Sex Blind Spot: Legitimacy And Representation, 2019 University of California, Irvine School of Law
American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay
Fordham Law Review
We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (visà-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law ...
The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, 2019 St. Mary's University School of Law
The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo
St. Mary's Law Journal
Texas House Bill 214 (H.B. 214) is subject to challenge under the Supreme Court precedent protecting a woman’s right to choose. Passed in 2017, H.B. 214 regulates Texas insurance markets by prohibiting coverage for an elective abortion unless a woman affirmatively opts into such coverage through a separate contract and pays a separate premium. Similar restrictions on insurance coverage for elective abortion in other states have been met with mixed results in the courts. What sets H.B. 214 apart from other regulations of insurance coverage for abortion is that it does not include any exceptions for ...
Empiricism And The Misdemeanor Courts: Promoting Wider, Deeper, And Interdisciplinary Study, 2019 University of Central Florida
Empiricism And The Misdemeanor Courts: Promoting Wider, Deeper, And Interdisciplinary Study, Alisa Smith
Pace Law Review
Since 1956, there have been three waves of scholarly attention on the misdemeanor courts. Despite this attention, misdemeanor courts remain understudied and overlooked. The object of this paper is to summarize the empirical research conducted over the last sixty years and identify the scholarly work that should be undertaken on the processing of misdemeanor offenders in our courts. Buoyed by the current interest in studying the misdemeanor courts, scholars should widen and deepen their study by replicating the work of others in a variety of jurisdictions, observing court proceedings, interviewing defendants and the courtroom workgroup, and assessing whether constitutional ideals ...
Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, 2019 Georgia State University College of Law
Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson
Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.
To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source ...
Neuroscientists In Court, 2019 Stanford University
Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle
Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.
This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience ...
First Women Lawyers In Rhode Island: Dedication First Women Of The Rhode Island Bar (1920-1979) 04-11-2019, 2019 Roger Williams University
First Women Lawyers In Rhode Island: Dedication First Women Of The Rhode Island Bar (1920-1979) 04-11-2019, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, 2019 Alexander Blewett III School of Law at the University of Montana
Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V
Public Land & Resources Law Review
The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s ...
Privatizing Criminal Procedure, 2019 Washington and Lee University School of Law
Privatizing Criminal Procedure, John D. King
John D. King
As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology ...
Selective Hearing: Communication Barriers In The Court System For Deaf And Hard-Of-Hearing Victims Of Rape Or Sexual Assault, 2019 College of William & Mary Law School
Selective Hearing: Communication Barriers In The Court System For Deaf And Hard-Of-Hearing Victims Of Rape Or Sexual Assault, Lauren Oberheim
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, 2019 Pepperdine School of Law
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
Pepperdine Law Review
The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the ...
Habeas Corpus In The Age Of Guantánamo, 2019 Montclair State University
Habeas Corpus In The Age Of Guantánamo, Cary Federman
The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then ...
Complex Relationships: Public Policy And Law Solutions To Rebalance The Confrontation Clause, Evidence-Based Intimate-Partner Violence Prosecution, And Public And Private Violence After The Resurrection Of Roberts, 2019 Trinity College
Complex Relationships: Public Policy And Law Solutions To Rebalance The Confrontation Clause, Evidence-Based Intimate-Partner Violence Prosecution, And Public And Private Violence After The Resurrection Of Roberts, Kira Eidson
Senior Theses and Projects
Following the Supreme Court’s 2004 decision in Crawford v. Washington, tensions between the Sixth Amendment Confrontation Clause and evidence-based prosecution of intimate-partner violence increased. In consequence, the Court forged a path of Constitutional jurisprudence which has weakened the power of the Confrontation Clause, reverted to a disguised reliability test reminiscent of Ohio v. Roberts, and diminished the rights of the accused. Simultaneously, these rulings have created a hierarchy where the severity of private, domestic violence is regarded as a lower level of emergency than public violence. Consequently, the Supreme Court’s primary purpose test for testimonial statements should be ...
Felon Jurors In Vacationland, 2019 University of Maine School of Law
Felon Jurors In Vacationland, James M. Binnall
Maine Law Review
Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility. Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance. From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders. Still, to date, no research has focused on jury service as ...
Prosecuting In The Shadow Of The Jury, 2019 Northwestern Pritzker School of Law
Prosecuting In The Shadow Of The Jury, Anna Offit
Northwestern University Law Review
This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that ...
The Preliminary Injunction Standard: Understanding The Public Interest Factor, 2019 University of Michigan Law School
The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore
Michigan Law Review
Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action ...
Indiana Civil Legal Needs Study And Legal Aid System Scan, 2019 Indana University Maurer School of Law
Indiana Civil Legal Needs Study And Legal Aid System Scan, Victor D. Quintanilla, Rachel Thelin
Books by Maurer Faculty
In 2017, the Indiana Coalition for Court Access entered into a partnership with Indiana University to conduct a statewide legal needs study. The IU Center for Law, Society & Culture and the IU Public Policy Institute submit this final report to the CCA. We designed this comprehensive study of legal needs to provide a relevant, reliable source of information with which the CCA, policymakers, and legal aid providers can make strategic decisions about where, when, and how to allocate resources for the effective, efficient delivery of civil legal services. We also designed this project to generate data and information that these ...
Mitigations: The Forgotten Side Of The Proportionality Principle, 2019 University of Pennsylvania Law School
Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson
Faculty Scholarship at Penn Law
In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering ...