Setting limits fairly: can we learn to share medical resources?

knowledge. Methods That Matter reflects the now widespread recognition that forward movement in the social sciences will happen when scholars take an ecumenical standpoint visà-vis the choice of methodological tools for answering questions about social patterns and behaviors. However, the volume’s collective motivation—that mixed methods yield integration across the social sciences and have proved valuable in the careers of important social scientists—seems like a point whose arrival is late to the party. Halfway through my reading, I wanted a volume that more tightly cohered around how the state of knowledge in human development science, especially that related to ecocultural theory, was advanced through mixed methods approaches. Instead, when reading this volume, a reader who is not steeped in the debates within the human development science field is left to read between the lines about the nature of the ruptures or bridges in that field and at a loss to draw meaningful comparisons to other social science fields where there have been more or less significant moves towards methodological pluralism.

From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America:

An innovative book that provides fresh insights into the neglected field of remedies in both international and domestic human rights law Providing an overarching two-track theory, it combines remedies to compensate and prevent irreparable harm to litigants with a more dialogic approach to systemic remedies It breaks new ground by demonstrating how proportionality principles can improve remedial decision-making and avoid reliance on either strong discretion or inflexible rules It draws on the latest jurisprudence from the European and Inter-American Courts of Human Rights and domestic courts in Australia, Canada, India, New Zealand, Hong Kong, South Africa, the United Kingdom and the United States Separate chapters are devoted to interim remedies, remedies for laws that violate human rights, damages, remedies in the criminal process, declarations and injunctions in institutional cases, remedies for violations of social and economic rights and remedies for violations of Indigenous rights

Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law

Remedies for Laws That Violate Human Rights

Declarations, Injunctions and the Declaration Plus

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases. By broadening our understanding of how forensic science is created and used in criminal cases -- by adopting a systemic perspective -- the Article points to a raft of yet unaddressed issues concerning the meaning of scientific integrity and reliability in the context of investigative decisions that are by in large committed to the discretion of decidedly unscientific actors. Critically, the Article demonstrates that systemic dynamics affecting upstream use of forensic science might well undermine the reliability-enhancing goals of the reforms advocated by the National Academy Report. As the NAS Report begins to set the agenda for active conversations around legislative and executive action to reform forensic science, it is critical to consider these questions. Moreover, the Article suggests that the embrace of science as a unique evidentiary contributor within the criminal justice system problematizes some of the bedrock assumptions of American criminal procedure that have, to date, prevented more robust doctrinal intervention in the investigative stages and decisions that the Article explores.

Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight

The 2009 Report of the National Academy of Sciences (NAS) on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory: namely, the manner in which police and prosecutors, as upstream users of forensic science, select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases. By broadening our understanding of how forensic science is created and used in criminal cases-by adopting a systemic perspective-the Article points to a raftof yet unaddressed issues concerning the meaning of scientific integrity and reliability in the context of investigative decisions that are by and large committed to the discretion of decidedly unscientific actors. Critically, the Article demonstrates that systemic dynamics affecting upstream use of forensic science might well undermine the reliability-enhancing goals of the reforms advocated by the National Academy Report. As the NAS Report begins to set the agenda for active conversations around legislative and executive action to reform forensic science, it is critical to consider these questions. Moreover, the Article suggests that the embrace of science as a unique evidentiary contributor within the criminal justice system problematizes some of the bedrock assumptions of American criminal procedure that have, to date, prevented more robust doctrinal intervention in the investigative stages and decisions that the Article explores.IntroductionOver the course of the last half century, science has moved from the periphery to a place of prominence in the investigation and prosecution of crime. Analysis of physical evidence, particularly with recent scientific and technological advances in the arena of DNA, has been embraced as advancing the fundamental epistemic goals of the criminal justice system by enhancing society's ability to connect the guilty with their misdeeds and, even more powerfully, enabling exculpation of the innocent. As the reliability of more traditional investigative tools such as eyewitness identifications and confessions has been increasingly scrutinized, the comparative accuracy of scientific evidence has been hailed.1 Yet at the same time, news headlines continually reveal laboratory- or analyst-level breakdowns, and many of the hundreds of exonerations seen in recent decades-through DNA testing or otherwise-have exposed error or outright fraud committed under the guise of "scientific" opinion.2 A significant body of critical academic commentary on the forensic science field strongly suggests structural rather than individual causes of these ills: the surprisingly thin research base for many forensic methodologies;3 systematic compromises to the quality of crime laboratory output due to under-resourcing and the undue influence of police and prosecutorial agendas on scientific analysis;4 poor access to, and use of, expert resources by defense counsel;5 and lax scrutiny of scientific evidence by courts.6Thus, forensic evidence is both special and mundane. It is special in its potential to identify and exclude with a degree of reliability that sets it apart from more traditional forms of proof in criminal investigations (eyewitness identification, confessions, informants, and the like). But it is also, like all evidence produced by humans in the crucible of the criminal justice system, susceptible to error, bias, manipulation, rationing, and other dynamics that compromise its reliability both in theory and in practice. …

American society tends to medicalize or criminalize social problems. Criminal justice reformers have made arguments for a positive role in the relief of poverty that are similar to those aired in healthcare today. The consequences of criminalizing poverty caution against its continued medicalization.

If You Would Not Criminalize Poverty, Do Not Medicalize It.

The Supreme Court’s 2009 decision in Herring v United States has prompted both criticism and puzzlement concerning the source, meaning, and implications of the new culpability-based framework that it announced for the Fourth Amendment exclusionary rule This Article proposes that Herring may be better understood not solely by reference to the exclusionary rule precedents to which the majority opinion claims fidelity, but rather in the context of the important and largely unexamined influence that constitutional tort doctrine has had in shaping exclusionary rule jurisprudence That influence has been driven by the interrelated processes of borrowing and convergence – the former, a deliberate tactic employed when the Court in United States v Leon drew from qualified immunity jurisprudence to define the contours of the exclusionary rule’s good faith exception; the latter, a gradual and progressive effect of that initial borrowing, whereby first the good faith exception, and eventually other areas of exclusionary rule doctrine, have increasingly drawn from and grown aligned with constitutional tort doctrine The Article identifies and traces these dynamics of borrowing and convergence in the arena of the exclusionary rule, illuminating the specific mix of historical contingency, adjudicatory pragmatism, and, perhaps most interestingly, tactical considerations that drove the influence of constitutional tort doctrine on the exclusionary rule generally, and in Herring more specifically This examination affords greater understanding of the source, contours, and likely trajectory of the exclusionary rule framework that Herring enunciates Moreover, close examination of borrowing and convergence in this particular context provides a basis for mapping a more systematic understanding of why and how disparate strands of doctrine come to cross-fertilize – in the particular realm of criminal procedure, in the broader arena of constitutional remedies, and in the law more generally The story of these dynamics in the exclusionary rule context offers a largely cautionary tale of the risks that convergence poses to substantive legal standards as well as jurisprudential values such as transparency, particularly in constitutional remedial jurisprudence

Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence

IntroductionIn 1996, Andrew Babick was convicted of arson and felony murder and sentenced to life in prison when a jury found that he had set the home of his drug dealer ablaze, killing two sleeping children.1 Babick claimed that he had not been involved and that the fire must have been accidental.2 As a federal appeals court deciding Babick's habeas petition would later observe, the direct evidence of Babick's culpability was thin: While Babick admitted that he had visited the home twice the night of the fire, only the shaky and self-interested testimony of the home's owner established that Babick had visited close in time to the blaze.3But other aspects of the state's case were powerful. The state presented two experts in fire science who testified that their investigation of the crime scene revealed that the fire had been deliberately set.4 Drawing on then-widespread beliefs in the fire-investigation community, the state's expert testified that the characteristics of visible burn patterns, including their lack of a "V" shape, established that the fire had been caused by flammable liquid poured throughout the home.5 Also appearing as a state's expert was a fire-department dog handler who testified that his dog, Samantha, had canvassed the crime scene and alerted to the smell of fire accelerants-a technique pioneered by the Bureau of Alcohol, Tobacco, and Firearms in 1982.6 Although laboratory testing had not detected accelerants inside the home or on evidence recovered from Babick, the handler testified that Samantha's detection abilities were more sensitive than laboratory equipment and that the dog was "100 percent correct every time" she alerted to chemicals.7Babick's lawyer attempted to mount a challenge to the scientific evidence, but was unable to find experts willing to testify contrary to the state's proffered analysis.8 This was so, notwithstanding that four years prior to Babick's trial the National Fire Protection Association had published NFPA 921, a Guide for Fire and Explosion Investigations (NFPA 921), which set forth several concepts of fire science and procedures for fire investigation that contradicted the state's experts' use of burn patterns to identify accelerant.9 In particular, NFPA 921 recognized that advances in scientific understanding had displaced conventional wisdom about the observed traits of natural and accelerant-driven burn patterns with the concept of "flashover"-a stage of fire in which combustion makes naturally and accelerant-caused burn patterns frequently indistinguishable.10 NFPA 921 also rejected the use of canine alerts not confirmed by laboratory analysis.11Widespread acknowledgement and acceptance of NFPA 921 in the fire-investigation field took time, however. Fire-investigation training and practice increasingly rejected visual burn-pattern analysis as a reliable method of identifying chemical accelerant.12 In 2000, the Department of Justice's Technical Working Group on Fire/Arson Scene Investigation published a report identifying NFPA 921 as the "benchmark for the training and expertise of" fire experts,13 a conclusion that courts increasingly reached as well.14 In 2014, Babick, represented by lawyers from the University of Michigan Law School Innocence Clinic, persuaded a Michigan state court that the eighteen years since his conviction had seen the emergence of a new consensus surrounding fire science and that this constituted newly discovered evidence warranting a new trial.15Babick's case is one of hundreds of arson convictions whose factual basis has been undermined by significant new developments in fire science.16 It is also one of many, many more convictions in which scientific testimony that passed muster at the time of trial is substantially called into question by changed understanding in the relevant field.17 Of course, the potential for changed scientific understanding to undermine the factual basis for criminal convictions is endemic to the justice system's use of scientific evidence in adjudicating guilt. …

Jennifer E. Laurin

Papers

Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight

Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight

If You Would Not Criminalize Poverty, Do Not Medicalize It.

Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence

Criminal law’s science lag: How criminal justice meets changed scientific understanding