bepress Legal Repository
Not a member yet
645042 research outputs found
Sort by
End of Semester Sundae Party
No full texthttps://larc.cardozo.yu.edu/flyers-2023-2024/1144/thumbnail.jp
Legislating Courts
No full textJudges are ordinarily thought of as deciders of a specific sort: people who apply the rule of law to resolve disagreements between the parties appearing before them. But in every state, judges do far more. They are charged by state statutory or constitutional law with a range of quasi-administrative, quasi-legislative, and quasi-executive law enforcement functions. These roles raise a number of theoretical and practical concerns. In many states, though, legislatures have gone even further. They have either wholly delegated significant policymaking power to state court judges or have sat idle while those judges have assumed the mantle of functions that no state law ever gave them. Specifically, judges in states across the country have been designing and establishing specialized alternative courts like drug treatment courts, domestic violence courts, veterans courts, girls courts, and the like, all with either the most general of legislative authorization or with no legislative authorization at all. In this sense, judges have become deciders of a different sort-determining their own power, which criminal defendants will receive special(ized) treatment, and which will not, and how those efforts will be evaluated. Judges have become deciders of the very structure of a branch of state government.
My focus is on the interaction between these institutions and the rest of state government. If we are going to have specialized courts, who should make the decision to establish them? Who should design their structures, set their goals, and decide where they should operate? Who should oversee them? This essay argues that the answer to all of these questions is: state legislatures, at least in the first instance. While these judges ought to be applauded for their efforts and for devoting their energies to addressing an important social problem they encounter in their jobs every day, it is time for state legislatures to roll up their sleeves, to take a greater hand in designing these institutions with the help of subject-matter experts, to make them uniform, to oversee them, and to responsibly fund them. It is time for legislatures, rather than judges, to legislate
When Commanders Decide: Military Prosecutorial Decision-Making in Sexual Assault Cases
No full textCongress enacted legislation that went into effect in 2023, which transferred prosecutorial decision-making for serious cases, including sexual assault, from Commanders to military lawyers. While there is some research on the military’s criminal justice system that supports shifting the decision-making to military lawyers, there is a large body of research that suggests lawyers, too, suffer from similar impediments when handling decision-making for sexual assault cases. In the wake of this new amendment, it is important to continue assessing how the change will impact case processing, by first clearly understanding what was happening when Commanders had complete authority. This article explores a sample of sexual offense cases by analyzing the variables that increased the likelihood that a Commander would criminally charge a sexual assault case. The results support the conclusion that Commanders charged cases based on the Seriousness of the Offense, the Strength of the Evidence, and the Victim’s1 Preference. However, the findings also reveal that Commanders incorporate Blame and Believability on the part of the victim when assessing whether to fire a servicemember; accused servicemembers are less likely to face separation when victim blame factors increase and believability factors decrease