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Volume 64, Issue 6
Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility

By Mark W. BennettAm. U. L. Rev. 1331 (2015)

The soul of America’s civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses’ memories and the effect of the witnesses’ demeanor on their credibility.

Almost all jurisdictions’ pattern jury instructions about witness credibility explain nothing about how a witness’s memories for events and conversations work—and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness’s “memory” with no additional guidance. Similarly, the same pattern jury instructions on demeanor seldom do more than ask jurors to speculate about a witness’s demeanor by instructing them to merely observe “the manner of the witness” while testifying. Yet, thousands of cognitive psychological studies have provided major insights into witness memory and demeanor. The resulting cognitive psychological principles that are now widely accepted as the gold standard about witness memory and demeanor are often contrary to what jurors intuitively, but wrongly, believe.

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Why Capital Punishment is No Punishment At All

By Jason IulianoAm. U. L. Rev. 1377 (2015)

Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society’s most severe punishment.

In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.

This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad. There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation. By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.

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ESSAY: Griswold and its Surroundings: The 1963, '64, and '65 Terms

By L.A. Powe, Jr.Am. U. L. Rev. 1443 (2015)

There were four dominant themes of the mature—post-Frankfurter—Warren Court. First and foremost was ending Jim Crow in the South, a project that began with Brown v. Board of Education. Second was promoting democracy through “one person, one vote.” The third was the reform of the criminal justice system by requiring it to conform to national best practices. The last theme was expanding freedom of expression by ending McCarthy-era persecutions, liberating the depiction of sex from the Victorian Era ideal, and guaranteeing the right to vigorously criticize government. Of course there was considerable overlap among the themes, a point especially clear in the case of race and the criminal justice system. What makes Griswold v. Connecticut4 stand out so sharply is that it does not involve any of these themes and that it led to no further Warren Court decisions on the issue. The latter point is not surprising, as only the three New England states where the Catholic Church held undue influence had anti-contraceptive laws, and the Church, holding a losing hand, immediately capitulated. Thereafter, private entities like Planned Parenthood could offer contraception.

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COMMENT: Clogging the Pipeline: Exploring the D.C. Circuit's Improper Segmentation Analysis in Delaware Riverkeeper Network v. FERC and its Implications for the United States's Domestic Natural Gas Production

By Mary-Kaitlin E. RigneyAm. U. L. Rev. 1465 (2015)

Technological advancement in drilling techniques, primarily hydraulic fracturing, has provided access to previously unreachable natural gas reserves. Much of this increase in natural gas production is derived from the Marcellus Shale, a shale formation that spans Ohio, Pennsylvania, West Virginia, and New York. This surge in natural gas production has prompted natural gas pipeline companies to upgrade their pipeline networks. Pipeline companies must apply for certificates of public convenience and necessity from the Federal Energy Regulatory Commission (FERC) and, if approved, perform an environmental evaluation, as required by the National Environmental Policy Act (NEPA). In examining the environmental impacts of the pipeline project, pipeline companies must be careful not to impermissibly segment the project into component parts, thereby failing to consider a proposed project’s full range of environmental impacts. This is referred to as the rule against segmentation, developed by courts to ensure that companies consider the full range of environmental consequences of proposed projects. The D.C. Circuit recently reviewed the scope of a pipeline project’s environmental assessment in Delaware Riverkeeper Network v. FERC, holding that the FERC impermissibly segmented four pipeline upgrade projects by failing to consider their impacts in one environmental assessment. This Comment analyzes the D.C. Circuit’s decision in Delaware Riverkeeper Network v. FERC and argues that the court improperly applied NEPA’s rule against segmentation. The precedent established from the D.C. Circuit’s decision will cause even further delays in the pipeline permitting process and will hinder the United States’s ability to utilize its supply of natural gas.

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COMMENT: The Young and the Restless: How the Twenty-Sixth Amendment Could Play a Role in the Current Debate Over Voting Laws

By Nancy TurnerAm. U. L. Rev. 1503 (2015)

 

The Twenty-Sixth Amendment is commonly understood as lowering the voting age to eighteen. However, a close look at the Amendment’s language and history indicates that the Twenty-Sixth Amendment does more than just grant a right. Properly read, the Twenty-Sixth Amendment acts as an anti-discrimination law similar to the Fourteenth, Fifteenth, and Nineteenth Amendments. Accordingly, the Twenty-Sixth Amendment possesses the power not just to invalidate legislation that explicitly contravenes its purpose, but also to neutralize facially neutral legislation that was enacted with a discriminatory intent. Using Fourteenth and Fifteenth Amendment jurisprudence as a guide, this Comment proposes a framework for structuring Twenty-Sixth Amendment claims against facially neutral legislation. It argues that where claimants can show that a law was enacted for the purpose of impeding the youth vote, the Twenty-Sixth Amendment should trigger strict judicial scrutiny. It uses North Carolina’s new voting legislation, the Voter Information Verification Act, to illustrate how a group of students may demonstrate that this facially neutral legislation was enacted for the purpose of frustrating young and student voters.

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