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Directing Unconstitutional Verdicts: When Judges Become Jurors on Self-Defense
Full text linkThe right to self-defense is one of the oldest and most universal concepts in Anglo-American criminal law and criminal procedure. Under this defense, an accused person, who honestly believed that using force was necessary to protect themself from imminent danger, did nothing criminal even if another person was harmed as a result. To assert self-defense at trial, however, the accused must admit to intentionally committing the forceful acts alleged to explain how they only used such force to save themself from immediate harm. Once an accused has made such a grave admission, the jury must consider whether the force was in fact justified—meaning the accused is innocent.
Notwithstanding, this article illuminates how some trial judges are denying the accused’s valid request to instruct the jury on their self-defense claim based on personal opinions, prejudices, and biases about the credibility of the accused’s proof. Just last year alone, at least twenty state judges in twelve jurisdictions were found to have erroneously denied the accused’s right to have the jury consider their substantiated justification defense. These judges, this article argues, are unilaterally usurping the jury’s exclusive fact-finding role to gatekeep it from deliberating on the accused’s only defense—leaving the jury no choice but to convict because the accused already conceded to intentionally committed the alleged acts when explaining the justification for their conduct. These judicially predetermined outcomes are effectively, this article proposes, unconstitutional directed verdicts of guilt.
What then is the remedy for the convicted person who suffered this type of constitutional violation? Because the Supreme Court has denied certiorari on this issue, declining to consider whether this violation requires automatic reversal or harmless error review on appeal, state appellate and federal circuit courts across the country are split on which standard of review applies to this instructional error of constitutional magnitude. To resolve the discrepancies in appellate outcomes across and within jurisdictions, this article argues that a court’s erroneous refusal to instruct the jury on an accused’s evidentiarily substantiated justification defense can never be ‘harmless.’ Because such an error vitiates the decision-making balance of powers required by due process to ensure that a jury, rather than a solitary judge, decide whether the accused is guilty or innocent, this work ultimately calls upon the highest federal and state courts to recognize this injustice and finally come to the resolution that such unconstitutionally directed verdicts must be automatically reversible on appeal
Jones v. Mississippi: Sweeping Away the Due Process Protections of Juvenile Offenders
Full text linkThe U.S. Supreme Court’s pronouncement in Jones v. Mississippi raises questions about whether states will adequately adhere to the fundamental fairness principles of constitutional due process. The current juvenile sentencing procedures center on Miller v. Alabama, in which the Court struck down mandatory life-without-parole statutes applicable to juveniles. But in the post-Miller era, state legislatures and courts have struggled with how to apply the Miller Court’s holding. Ultimately, the Jones Court eliminated procedural due process rights for the criminal system’s most vulnerable class. But while procedural due process in the criminal sentencing context is not well defined as is, the holding in Jones does not even meet a broad fundamental fairness threshold.
This article argues that Jones v. Mississippi undermines the procedural due process rights afforded to this category of defendants and how the Jones majority hinders the forward momentum of recognizing rehabilitation as a goal for transferred youth, as required in Graham, Miller, and Montgomery. This article also discusses the standards employed by federal trial courts to minimize bias in a discretionary sentencing system. Finally, this article expounds on the basic frameworks established in state legislatures and courtrooms to fulfill the spirit of Miller v. Alabama—that children are constitutionally different. Thus, sentencing standards must bend to accommodate this recognition, and possible solutions are proposed to remedy the sentencing challenges presented by Jones
Is Trade Secret Law Applicable and Practical in SEC Coaching? A Look into Kirby Smart and Nick Saban
Full text linkTrade Secret Laws are vital in the corporate world to protect and encourage corporations to innovate without fear of others profiting from their effort. Is this applicable in other areas as well? This note analyzes the applicability and practicality of Trade Secret Law in College Football coaching through the lens of Kirby Smart, Head Coach at the University of Georgia, and Former University of Alabama Head Coach Nick Saban’s previous professional relationship. Coach Kirby Smart worked under Coach Saban for eleven years. After this, Kirby Smart succeeded as the Head Coach at the University of Georgia. The success and organization of the University of Georgia is very similar to that of Nick Saban’s program at Alabama is a great tool to look into what would qualify as a trade secret in college football and at what point misappropriation can be proven
K-Popopoly: Navigating Antitrust Terrain in South Korea’s Music Markets
Full text linkSouth Korea’s unique blend of Chaebol dominance and a booming K-Pop industry contrasts sharply with U.S. antitrust norms, raising key questions about how competition law adapts across cultures
The New Game Theory
Full text linkGame theory and the legal system it models are deeply indebted to the idea of efficiency and efficient outcomes. A great many scholars use game theory to rationalize approaches based on efficiency not only to commercial transactions but also to the legal system writ large, including the tort law system and the criminal justice system.
Efficiency and efficient outcomes have a storied history dating back to Vilfredo Pareto, Ronald Coase, and even before that to Adam Smith. But the person who truly popularized the idea of efficiency was John Nash, who won the Nobel Prize for his work on noncooperative game theoretic outcomes. Nash invented the idea of a “Nash equilibrium” in game theory, which counsels that, in game theory dilemmas, the individual players should act to maximize their own self-interest, and any solution where players can “deviate” to improve their individual outcomes means they will.
Many scholars have thrown “stones” at Nash, and the idea of efficiency—both inside and outside of game theory. Cooperation scholars, critical race theorists, scholars of law and political economy, and some scholars within the law and economics movement have criticized efficiency and efficient outcomes. Indeed, even some renowned computer scientists and political scientists seem to take issue with aspects of Nash, and some suggest that players should play cooperatively and not in competition.
This article builds on their work and suggests an alternative framework to Nash. Instead of designing structures in which individuals act in their self-interest alone, which can lead to a tragedy of the commons and overuse of resources, this article argues that game theory designers should design structures in which there is no incentive to deviate or cheat, and that barring this, players should form pacts or accords with other players to pursue a Kenney/Dyson equilibrium, which in the end is better in terms of utility both for the individual and for the collective than if they had pursued their pure self-interest alone.
These solutions cohere with laboratory experiments performed in real life about how real humans behave, as well as mathematical models predicting pure cooperation through departures from Nash equilibriums. They are enforceable using mechanisms such as reputation and empathy or by the community or elected community members, though they are also compatible with central institutions. An important caveat is that these game theory solutions only work in the right environment and in the long run.
When such conditions arise, the new game theory thus suggests a toehold into global problems, ranging from harsh prison conditions to prevention of corporate wrongdoing, and ultimately provides new answers to issues such as climate change and wealth inequality, where pursuing naked self-interest can lead to stratification of resources and resource exhaustion. Ultimately, this article provides a foundation for a new legal system should political events lead to the de facto or actual collapse of our current system—the American democratic experiment
The Regulation of Presidential Elections
Full text linkThere is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article 1 section 4 of the Constitution gives Congress the power to override a state\u27s choices about the times, places, and manner of congressional elections held in the state. Article II section 1 gives the legislature of each state power to determine the “manner” in which its presidential electors are appointed, but grants no additional authority to Congress or the states to regulate presidential elections themselves. Congress plainly has power to regulate many aspects of these elections under the enforcement clauses of the Reconstruction Amendments, but what power, if any, does Congress have under the original Constitution to regulate those elections, once a state legislature has opted to use popular elections to appoint the state\u27s presidential electors?
The Supreme Court has upheld congressional authority to regulate presidential elections under the original Constitution in several contexts, but the issue has gained new salience in recent years because of a long running dispute in Arizona about whether the state can require voter registrants to present documentary proof of citizenship contrary to federal law. This dispute has presented the current Court with an opportunity to reconsider those earlier opinions and reshuffle the division of power between states and Congress in this realm.
This essay approaches this issue through a new lens. It begins by exploring the conflict in Arizona that has brought the issue back to the Supreme Court. It then explains the background or “default” rules governing the distribution of power between Congress and the states, and why those rules are inapplicable in this context. It does so by examining both the 1787 Constitution\u27s division of power over federal elections and several judicial opinions discussing and applying the resulting constitutional provisions. It concludes by arguing that this history, as well as multiple precedents of the Supreme Court, affirm that Congress has ample authority to regulate presidential elections once a state has chosen that method of appointing its electors
The Unconstitutional Overcriminalization of “Voter Fraud” By Formerly Incarcerated Felons
Full text linkFelon voting rights are under attack in the United States. State Attorneys’ General are using overbroad “voter fraud” statutes to prosecute formerly incarcerated persons voting or attempting to vote—even when done mistakenly. Worse, their public-facing rationale, voter fraud, has been repeatedly discredited. Some combination of Congress, the courts, and the people must act to prevent any such future prosecutions from occurring, particularly where it is shown that there was no intent to violate the law. Some have argued for more localized solutions like lobbying state legislators to change the law. But those efforts have, except in rare circumstances, failed.
Clearly, this issue requires remedies from within the judiciary, or within the federal Congress. The first step is to examine the options those branches provide, and the advantages and disadvantages inherent within them. As such, this Note briefly explores two national legislative solutions and one State-level judicial solution
See No Evil, Hear No Evil, Speak No Evil: How the Model Penal Code Incentivizes Ignorance Among Corporate Executives
Full text linkDue to the Model Penal Code’s stringent “knowledge” requirement for vicarious criminal liability, corporate executives, directors, and high managerial agents are inadvertently incentivized to stay uninformed of their subordinates’ actions as a means of safeguarding their employers. This not only leads to a deficiency in oversight, permitting potential criminal activities to go unchecked within corporations, but also establishes a significant shield against corporate criminal liability, given the challenges in proving such knowledge. Thus, a lower threshold for corporate, criminal, vicarious liability should be imposed, which instead promotes oversight. Others have recognized the issue at hand, but most often advocate for liability to fall upon individual executives. The United Kingdom’s “failure to prevent” series of offenses recognizes the difficulty in proving executives’ knowledge, and the injustice in prosecuting somebody who was ignorant to the conduct at issue.
Similarly, this Note argues that corporations should be strictly and vicariously liable for criminal conduct when inadequate preventative measures are in place and a corporate agent fails to prevent the wrongdoing. This Note incorporates aspects from the United Kingdom’s progressive “failure to prevent” approach with facets of modern American jurisprudence to provide a comprehensive solution to prosecuting corporations while also motivating executives, directors, and managerial agents to make themselves aware of internal activities
Overwhelming Unfairness: Pervasive Intentional Prosecutorial Misconduct, Structural Error, and State v. Arias
Full text linkThis article argues that in federal constitutional law, pervasive intentional prosecutorial misconduct always requires reversal of a criminal conviction. That is so for three reasons. First, since a trial pervaded by unfairness is an unfair trial, such a conviction violates the Donnelly fundamental-fairness rule. Second, such a due-process violation can never be found harmless under either the Kotteakos or the Chapman harmless-error test, properly interpreted. Third, pervasive intentional misconduct always or usually fits all but one of the Supreme Court’s seven descriptions of structural error. In particular, it always fits all three rationales on the Court’s most recent list.
En route to this narrow thesis about prosecutorial misconduct, I also defend a slightly novel general thesis about harmless constitutional error. Based on history, logic, and explicit Court explanations, Chapman, like Kotteakos, demands a contributing-factor, not a necessary-condition, idea of causation. Consequently, even overwhelming evidence of guilt does not prove error harmless. The question must always be whether the error is trivial by comparison to the untainted evidence. But given pervasive misconduct, no court, regardless of strength of evidence, can ever be reasonably sure that the misconduct’s contribution to the jury verdict was insignificant.
I illustrate all these issues throughout by Arizona’s most notorious recent murder case, State v. Arias. It is the first where any American appellate court has held that a trial permeated by pronounced and persistent misconduct can still be fair, and the conviction valid. I show that the court’s opinion, besides being triply preposterous, ignores settled Arizona precedent, and is a deep stain on American criminal law