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Table of Contents INTRODUCTION 322 I. SNAP REMOVAL: FUNCTION, ORIGIN, AND TREATMENT 323 A. Removal Generally 324 B. Snap Removal Functionally 325 C. The Snap Removal Movement 326 D. Scholarly [...]

INTRODUCTION 1479 I. THE SUPREME COURT'S EXCESSIVE FINES JURISPRUDENCE 1485 A. The Excessive Fines Clause and the Meaning of "Fines" 1485 B. Bajakajian and the Meaning of Constitutionally "Excessive" Fines [...], The Eighth Amendment to the U.S. Constitution bars the imposition of "excessive fines." Despite this seemingly straightforward mandate, case law is not harmonious on the meaning of "excessive" under the Eighth Amendment. Significant questions persist as to whether imposing an economic sanction on a defendant that lacks any ability to pay is incongruous with the Amendment's prohibition on excessive fines. Although the relevance of the "ability to pay" question to the excessiveness inquiry was acknowledged by the Supreme Court in the 2019 case Timbs v. Indiana, the Court left the resolution of the question for another day. This Article laments the Court's decision to pass on this examination. It does so by analyzing the imposition of special assessment fees on indigent criminal defendants, an aspect of sentencing that has received remarkably little attention from legal scholars and practitioners. The starting point is an overview of the special assessment fee structure and how it compares to other economic sanctions imposed in the criminal legal system. When a defendant is sentenced, no fine is imposed if the judge determines that the defendant lacks the ability to pay any fine. In such circumstances, explicit in the judge's determination is that the defendant is too poor to pay any amount of money. But the current special assessment fee structure requires every individual defendant to pay a $100 special assessment fee for each count of conviction on a federal crime, even if the judge has already determined that the defendant is too poor to pay an accompanying fine. Because many Americans cannot relate to the jeopardy of being unable to pay a $100 fee, it is taken for granted that individual defendants who cannot pay any amount of money should somehow be able to pay this amount. This thinking not only defies logic, it also ignores the reality that for people wrapped in the iron grip of poverty, even "small" legal financial obligations ("LFOs") can have devastating consequences that trickle down to families and communities. The current special assessment scheme is also defective because it overlooks the administrative burdens of overseeing LFOs that will not be collected. With the consequences of these deficiencies in mind, this Article suggests a straightforward but overlooked reform to the special assessment scheme. It argues that a sentencing court should be permitted to, and ought to, waive the imposition of a special assessment fee if the court has already determined that a defendant is unable to pay any amount of money. At best, when a defendant's financial situation forecloses any payment, the status quo special assessment scheme is an administrative inefficiency because of the costs of overseeing LFOs. And at worst, it may violate the defendant's Eighth Amendment protections against excessive fines.

INTRODUCTION 1370 I. THE STATE OF SENTENCING TODAY 1373 II. THE DISTRICT COURTS 1377 III. THE COMMISSION 1379 IV. CONGRESS 1381 V. APPELLATE REVIEW 1382 A. Before Booker 1382 B. [...], The Supreme Court's case law following Apprendi v. New Jersey and United States v. Booker, and the decisional law of the federal appellate courts, have had unintended and less than salutary results. While the appellate courts were uniquely suited to offer a meaningful critique of the Federal Sentencing Guidelines ("Guidelines") as well as substantive guidance about what non-Guidelines sentencing might involve, they have largely abdicated those roles. Judicial critiques of the Guidelines could have made the U.S. Sentencing Commission more accountable and could have imposed the kind of review that other agency rules and criminal statutes receive by requiring that the Guidelines be aligned with the purpose of sentencing and based on studies and data. But since the appellate law requires nothing more than that the district courts compute the Guidelines correctly, there is no incentive to critique them. Nor have appellate courts provided any substantive guidance concerning what non-Guidelines sentencing should involve or what principles should inform non-Guidelines sentences. The result is that interpretation of the Guidelines has stalled, on the one hand, and the substantive law of sentencing is chaotic, on the other.

INTRODUCTION 1196 I. THE DEVELOPMENT OF THE SIXTH AMENDMENT SENTENCING RIGHT 1197 II. UNDERMINING THE RIGHT WITH THE REMEDY 1208 A. Policy Disagreement 1210 B. Appellate Review 1216 C. Independent [...], The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences. The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right. The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis. Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice. What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment--the liberty interests of criminal defendants and democratic input into individual criminal cases. Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

INTRODUCTION 1312 I. THE RISE OF THE SIXTH AND EIGHTH AMENDMENT LIMITS ON MANDATORY SENTENCING 1316 A. The Problem of Unf ettered Sentencing Discretion 1316 1. The Indeterminate Sentencing Era [...], In some respects, the Sixth and Eighth Amendments have followed parallel tracks in their modern development. In both contexts, statutory schemes emerged from a concern related to arbitrary and inconsistent sentencing outcomes. These statutory approaches sought to remedy the sentencing problem by imposing mandatory sentencing requirements. The Court subsequently found the mandatory approaches to be unconstitutional. Even so, in both contexts, mandatory sentencing outcomes persist. Part of the explanation for this lies in a judicial fear of sentencing discretion. Part of the explanation may also relate to a hesitancy to use the Constitution to restrict majoritarian legislative power. In light of this descriptive account, this Article advocates for the loosening of the vestiges of mandatory sentencing schemes in favor of increased sentencing discretion in individual cases through constitutional expansion. Specifically, the Article seeks to rebalance state and federal criminal sentencing decisions in light of individualized circumstances related to the purposes of punishment. In Part I, the Article tells the parallel stories of the Sixth and Eighth Amendments and the constitutional limits placed on mandatory sentencing. Part II explores how and why elements of mandatory sentencing still persist. Finally, in Part III, the Article advocates for the minimization and, in some cases, elimination of mandatory sentencing schemes.

When I was in law school in the early 1990s, if we had done a retrospective on the twentieth or twenty-fifth anniversary of criminal procedure, it would have been about [...]

Introduction: Understanding Calls to Defund the Police 626 I. Policing in the United States: Systemic Racism Racial Trauma, and the Need to Rebuild Democracy 631 A. U.S. Policing Is Systemically [...]

INTRODUCTION 276 I. OVERVIEW OF MDL 279 A. A Brief History 281 B. Use of the MDL Statute Today 282 C. Rules Committee Progress 284 II. ADVANTAGES AND DISADVANTAGES OF [...]

TABLE OF CONTENTS I. INTRODUCTION 1378 II. THE ENACTMENT AND HISTORY OF 28 U.S.C. [SECTION] 1782: AN EXAMINATION OF THE PROVISION'S LEGISLATIVE HISTORY, TEXT, AND PURPOSE 1383 A. The Road [...], The rise of globalization and the normalization of transnational commercial agreements motivated the United States to make commitments that seek to facilitate the resolution of international litigation and dispute resolution processes. One of the byproducts of the United States' commitment to international cooperation is 28 U.S.C. [section] 1782, a statute that opens American courts to foreign parties seeking discovery for use in foreign proceedings. Continuous amendments to this statute, paired with a Supreme Court decision that provided an overly vague, unworkable balancing test, gave free rein to lower courts' discretionary powers, ultimately resulting in a myriad of conflicting decisions. This Note seeks to address some of the aforementioned conflicts and proposes an amendment to 28 U.S.C. [section] 1782 that would reduce the extent to which courts' discretionary powers play a role in the outcome of [section] 1782 requests, resulting in a more straightforward application of the statute.

CRIMINAL PROCEDURE--IRRATIONAL DISTRICT COURT DECISION FORCES NEW TRIAL--United States v. Cota-Luna, 891 F.3d 639 (6th Cir. 2018). Within the realm of criminal procedure, courts are typically granted a fair amount [...]

State v. Wood, 580 S. W.3d 566 (Mo. 2019) (en banc). I. INTRODUCTION Courts generally prohibit the admission of unfairly prejudicial evidence. (1) The idea is that jurors should not [...]

Abstract: For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long [...]

TABLE OF CONTENTS INTRODUCTION 739 I. THE CODIFIED EXCEPTIONS: HOW THEY CAME TO BE 742 A. The Text of the Rules 742 B. Legal, Policy, and Psychological Justifications of the [...], Eminent jurist and legal scholar Richard Posner, formerly of the Seventh Circuit, has recently ignited a controversy regarding the Federal Rules of Evidence ("FRE") hearsay exceptions. Through his concurrence in United States v. Boyce, Judge Posner characterized the existing hearsay exception paradigm as mere "folk psychology." Further, Judge Posner called for the abolition of the modern categorical method and, instead, favored a "residual reliability" approach pursuant to FRE 807. Under this approach, each statement's admissibility would hinge upon the statement's unique demonstrated reliability to the presiding trial judge. Prior to the FRE's enactment, the Advisory Committee contemplated the preferability of solely utilizing a residual approach. Judge Posner's concurrence is a modern renaissance of this debate. However, the legal scholarly consensus remains against the Posnerian model. Perhaps most tellingly, as recently as October 21, 2016, the Advisory Committee rejected Judge Posner's proposal while describing it as an "all-out discretion fest." Since, Judge Posner has dialed back on abolishing the hearsay rule. Crucially, however, Judge Posner still adamantly maintains that the most prominent exceptions of the traditional approach should be eliminated. This note examines and expands upon Judge Posner's proposal through analyzing the interplay of law, psychology, and policy. Most fundamentally, this note underscores what Judge Posner's critics fail to adequately address. This note uniquely reveals the "truth behind the hearsay curtain" which is that trial judges already frequently employ a masked residual model while hiding behind the exception labels. This note also elucidates a myriad of psychological evidence underlying the archaic nature of several prominent exceptions criticized by Posner including: present sense impressions, excited utterances, and dying declarations. Furthermore, this note expands the Posnerian approach to the then-existing mental, emotional or physical condition statements, and statements made for medical diagnosis or treatment. Additionally, this note examines the chief criticism of the residual approach which alleges that trial judges would receive unfettered discretion thereby posing severe judicial uncertainty. After analogizing the judicial discretion allowed under FRE 403 for measuring prejudicial value and under FRE 404(b) for assessing character evidence, coupled with the Posnerian model's covert frequent usage, this note submits that the residual approach surpasses this criticism. Thus, this note ultimately concludes that an expanded Posnerian model provides an optimal direction for the FRE with the caveat that a select few modern exceptions should remain based upon their practical value and internal safeguards of reliability: business records, public records, and declarations against interest.

Abstract: For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle [...]

Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges [...]

I. INTRODUCTION For over 80 years, courts in British Columbia have been criticized for departing from the literal meaning of dependants' relief legislation, causing its application to be subjective and [...]

INTRODUCTION I. THE FEDERAL CIRCUIT'S APPROACH TO HALO II. DISTRICT COURT DETERMINATIONS UNDER THE HALO INQUIRY A. District Court Determinations That Have Adopted the Read Inquiry 1. Read and an [...]

INTRODUCTION Prisoners in the United States can sue their jailers. (1) Prisoners have a right to sue wardens, guards, medical staff, and any other governmental entity they encounter while incarcerated. [...]

INTRODUCTION 996 I. MEDICAL MALPRACTICE LAWS AND THE ROLE OF EXPERTS 999 A. The Prominence of Custom 999 B. The Necessity of Expert Witnesses 1001 II. DISCREPANCIES IN ADMITTING PRIOR [...], Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury's decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity for incompetence, so courts exclude this evidence when offered against defendant doctors. However, they disagree as to whether such evidence is admissible against nonparty experts. Federal Rule of Evidence 404 should prohibit prior malpractice evidence in both contexts, but courts disregard this rule for experts and admit or exclude this evidence on a discretionary basis. While bypassing rules of evidence is problematic, the policies prompting courts to do so are persuasive. This Note proposes that Rule 404 be amended to include an exception that permits evidence of an expert's character for competency subject to two standards of judicial discretion. This prior malpractice evidence can help the jury by providing a better proxy for expert credibility and solve other problems inherent in expert-focused trials, without sacrificing democratic notions of allowing laypersons to administer justice.

Table of Contents Introduction I. Sketching the Contours of the State Secrets Privilege A. The Origins of the State Secrets Privilege 1. Early years 2. Canonization 3. Modern trends B. [...], Reams have been written on the state secrets privilege and its consequences for litigants' rights. So too have scholars explored individuals' rights to challenge security clearance decisions as they relate to employment. But there has never been a thorough exploration of how to resolve conflicts between the state secrets privilege and the security clearance system that arise where Article III courts seek to adjudicate complex state secrets privilege disputes. This Note seeks to fill that void by answering the question whether courts have the authority to influence security clearance decisions--or at least subsequent "need-to-know" determinations--for expert witnesses, special masters, and litigants' counsel the courts deem necessary to assist them in adjudicating state secrets privilege assertions. The state secrets privilege acts as an absolute bar to disclosure of privileged material. Even cases alleging horrific human and civil rights abuses like extraordinary rendition or torture are routinely dismissed when the government or its agents claim the privilege. Because of the harsh effects of the privilege, the Supreme Court set forth in its landmark 1953 case United States v. Reynolds that courts should take an active and discerning role in assessing state secrets privilege invocations: The privilege is appropriate only where a court is convinced "that there is a reasonable danger that compulsion of the evidence will expose" state secrets. And the Court warned that "abandonment of judicial control would lead to intolerable abuses." In the years since Reynolds, many have come to fear that misuse of the privilege has become common. Particularly since 9/11, privilege invocations have surged, and the consequences flowing from the government's seeking outright dismissal have been harsh. And many courts have moved toward accepting vague and general arguments from the executive on when the privilege applies. But in the face of these trends, some judges have attempted to regain control. Among other innovations, these judges have sought to involve special masters, expert witnesses, and litigants' counsel to aid in the effective adjudication of complex state secrets privilege invocations, rather than accepting the executive's arguments out of hand. The executive branch has resisted judicial innovation. Because virtually everything that is allegedly a state secret is also classified, the executive has stifled disclosure of disputed information to expert witness, special masters, and litigants' counsel on the basis that they do not "need to know," as defined by the executive orders that shape the classification and security clearance system. The same orders purport to give the executive plenary power to determine who gets to access classified information and when. Although several courts have confronted this issue, most have dodged it. This Note seeks to provide, for the first time, a thorough framework on which judges can draw in confronting this question. It concludes that based on doctrine and precedent from the Supreme Court and elsewhere, judges have the authority necessary to influence both the security clearance process itself and subsequent "need-to-know" determinations.

Introduction I. Tennessee: A Case Study II. The Absence of Discretion A. The Traditional Approach 1. Low Relevance 2. High Unfair Prejudice a. Victims are Victims: Addressing Counterarguments B. Dabbling [...]