1,720,957 research outputs found
The Problem with Direct Collateral Review
Full text linkFederal habeas review of state convictions is sharply circumscribed for a reason: Granting the writ of habeas corpus disrupts the federalism and finality interests that lie at the heart of state sovereignty over criminal law. Both the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Supreme Court’s equitable bars to relief reflect the structural dangers inherent in collateral review of state convictions. Given the increasing unavailability of federal habeas relief, state prisoners have turned to another vehicle for collateral federal review, one that bypasses AEDPA’s demanding standard: direct review of state post-conviction proceedings. And regrettably, the Court has entertained this AEDPA arbitrage in recent years. This Essay explains why there is no principled reason to treat the Supreme Court’s direct collateral review differently from federal habeas review of state convictions. Direct collateral review constitutes an intrusion into state sovereignty identical to that of habeas relief, but without the guardrails that attend habeas review. The Court should either decline to grant certiorari in such cases or apply AEDPA deference when it does. To do otherwise countenances a breathtaking arrogation of power to the Supreme Court at the expense of the interests protected by AEDPA. The Court should close this finality-busting loophole
Structurally Harmless: Why Brecht Should Apply on Collateral Review of Structural Errors
No full textEven when a prisoner has overcome all of AEDPA’s requirements and the Supreme Court’s equitable bars to relief, the writ of habeas corpus may issue only as “law and justice” require. The Court has recognized in recent Terms that the habeas statute thus confers on courts discretion to deny relief notwithstanding the satisfactions of the statutory and equitable preconditions. This discretion, the Court has said, is not boundless. A judge may grant the writ only after considering the principles of finality and federalism. Whatever else that includes, the Supreme Court has made clear that a judge must apply Brecht’s harmlessness standard before granting relief.
The Supreme Court, however, has not yet clarified whether courts must apply Brecht to cases involving structural error—i.e., error that is not susceptible to harmlessness review on direct appeal. The lower federal courts continue to forego a Brecht analysis on collateral review when an error is structural.
Those courts are wrong. This Essay explains why cases involving structural error must nevertheless be subject to Brecht’s harmlessness standard on collateral review. In so doing, this Essay explains how Brecht fits into both the historical and modern trajectory of habeas jurisprudence. It further illuminates why applying the structural-error doctrine on collateral review vitiates the principles of finality and state sovereignty that habeas is meant to protect. And it concludes by showing why applying Brecht on collateral review does not undermine the institutional justifications for the structural-error doctrine
Pretrial Detention by a Preponderance: The Constitutional and Interpretive Shortcomings of the Flight-Risk Standard
Full text linkPretrial detention seriously restricts the physical liberty of presumptively innocent people who have yet to be tried and convicted. The Bail Reform Act (BRA) imposes several procedural requirements that must be satisfied before a judge can order the pretrial detention of a federal defendant. At a detention hearing, the BRA allows a judge to order the pretrial detention of an arrestee who poses either a danger to the community or a flight risk. The BRA states unequivocally that a finding of dangerousness must be supported by clear and convincing evidence, but the statute is silent as to the evidentiary standard for establishing a defendant’s flight risk. In the absence of statutory guidance, the courts of appeals have utilized a “preponderance of the evidence” standard.
This Comment contends that the preponderance standard for flight risk is unconstitutional and interpretively incorrect. In cases involving similar government restrictions on physical liberty, the Supreme Court has generally required at least a “clear and convincing evidence” standard to comport with due process. Using these cases as a baseline, this Comment applies the Mathews v. Eldridge due process framework to reveal the constitutional infirmity of the preponderance standard for pretrial flight risk.
In making the interpretive argument for a clear and convincing evidence standard, this Comment dissects the BRA’s legislative history and statutory evolution to show that Congress intended for flight risk and dangerousness to be considered under equivalent standards. This Comment concludes by making a constitutional avoidance argument: there exists (1) a serious question as to the constitutional validity of the preponderance standard for flight risk and (2) a plausible interpretation of the BRA—that flight risk ought to be proven by clear and convincing evidence—that avoids those constitutional concerns
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Pretrial Detention by a Preponderance: The Constitutional and Interpretive Shortcomings of the Flight-Risk Standard
No full textPretrial detention seriously restricts the physical liberty of presumptively innocent people who have yet to be tried and convicted. The Bail Reform Act (BRA) imposes several procedural requirements that must be satisfied before a judge can order the pretrial detention of a federal defendant. At a detention hearing, the BRA allows a judge to order the pretrial detention of an arrestee who poses either a danger to the community or a flight risk. The BRA states unequivocally that a finding of dangerousness must be supported by clear and convincing evidence, but the statute is silent as to the evidentiary standard for establishing a defendant’s flight risk. In the absence of statutory guidance, the courts of appeals have utilized a “preponderance of the evidence” standard.
This Comment contends that the preponderance standard for flight risk is unconstitutional and interpretively incorrect. In cases involving similar government restrictions on physical liberty, the Supreme Court has generally required at least a “clear and convincing evidence” standard to comport with due process. Using these cases as a baseline, this Comment applies the Mathews v. Eldridge due process framework to reveal the constitutional infirmity of the preponderance standard for pretrial flight risk.
In making the interpretive argument for a clear and convincing evidence standard, this Comment dissects the BRA’s legislative history and statutory evolution to show that Congress intended for flight risk and dangerousness to be considered under equivalent standards. This Comment concludes by making a constitutional avoidance argument: there exists (1) a serious question as to the constitutional validity of the preponderance standard for flight risk and (2) a plausible interpretation of the BRA—that flight risk ought to be proven by clear and convincing evidence—that avoids those constitutional concerns
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Dispelling the Myths Behind First-author Citation Counts
Full text linkWe conducted a full-scale evaluative citation analysis study of scholars in the XML research field to explore just how different from each other author rankings resulting from different citation counting methods actually are, and to demonstrate the capability of emerging data and tools on the Web in supporting more realistic citation counting methods. Our results contest some common arguments for the continued
use of first-author citation counts in the evaluation of scholars, such as high correlations between author rankings by first-author citation counts and other citation
counting methods, and high costs of using more realistic citation counting methods that are not well-supported by the ISI databases. It is argued that increasingly available digital full text research papers make it possible for citation analysis studies to go beyond what the ISI databases have directly supported and to employ more
sophisticated methods
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