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Rabbi Lamm, the Fifth Amendment, and Comparative Jewish Law
Get PDFRabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, R. Lamm’s article has received the attention of scholars, has been republished, and has been cited in several judicial opinions—among them, two United States Supreme Court opinions, including the landmark Miranda v. Arizona. As such, the article stands as a prime illustration of the potential promise of exploring Jewish law through the prism of modern thought and applying Jewish legal principles to contemporary issues
For All Who Have Borne the Battle: A Wish List For the Incoming Secretary of the United States Department of Veterans Affairs
Get PDFRethinking Appeals
Get PDFThis paper makes the point that a court decision that is open to an appeal is akin to a take-it-or-leave-it settlement proposal for both parties. For the case to not be appealed, both parties need to “take,” i.e., accept, this proposal. Thus, on one hand, if both parties cannot achieve a settlement by themselves, they usually benefit from the right to appeal. On the other hand, a right to appeal activates the regressive effects that characterize settlements, which also applies to lower-court decisions. For example, legal uncertainty has a regressive effect on lower-court decisions: if the judge wishes to block appeals to protect one party\u27s interest, his or her own self-interest, or the system\u27s interest, the lower court judge’s decision will be regressively biased relative to the higher-court decision. In fact, this could also occur without strategic judges, but this would be an evolutionary process
Analyzing Wrongful Convictions Beyond the Traditional Canonical List of Errors, for Enduring Structural and Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies)
Get PDFResearchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students in their respective wrongful convictions courses. Students also designed a vignette of their case and conducted structured interviews with public officers, judges, lawyers, and investigators which inquired into the subjects’ awareness of exonerations. A follow up study, which is the subject of a future publication, was conducted with students at Curry College in Boston in 2019, many of whom worked as Boston City Police Officers and in other law enforcement occupations. The officers added their expertise and their appreciation of structural problems like justice system culture. This study emphasizes that the errors we see within the criminal justice system mirror and amplify the problems we see outside of that system. The findings here show that canonical list of errors in these cases may be just a veneer for deeper structural problems
Rights and Obligations: Commemorating the 30th Anniversary of the Americans With Disabilities Act of 1990
Get PDFGlobalization and Privatization of Federal Corporate Prosecutions: The Pressures Eroding Fifth Amendment Rights
Get PDFOver the past several decades, our society has continued to become even more globalized and interconnected. The dynamic put increasing pressure on the fairness of criminal trials in domestic courts. This Article discusses two recent phenomena that illustrate this evolution and their impact on the defendants’ rights against selfincrimination: the globalization and privatization of the federal prosecutions. Globalization is understood as the United States’ Government’s increased reliance on foreign authorities in prosecution of cross-border crimes, while privatization denotes the Government’s reliance on private actors in conducting investigations. Investigations conducted by private entities and foreign governments, and the evidence those investigations produce, raise significant constitutional questions. Accordingly, this Article positions these phenomena and recent case law side-by-side the Fifth Amendment precedent that interpreted the constitutional protections against self-incrimination expansively. To best preserve the values of the Fifth Amendment, federal courts should evaluate compelled testimony with a flexible evidentiary standard. This standard must be cognizant of the changing prosecutorial landscape creating new contexts where defendants may incriminate themselves, and of how can such confessions shape the direction of investigations