Frank Miller’s Legal Scholarship

Robert O. Dawson and George E. Dix

The Debate in the DNA Cases Over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis

Edward J. Imwinkelried
The first part of the Article addresses the threshold question of whether deficiencies in test protocol should affect the admissibility as well as the weight of scientific testimony. After surveying the empirical studies of laboratory proficiency, the Article concludes that correct test procedure is such a fundamental concern that it should impact the admissibility of scientific evidence. The second part of the Article turns to the question of whether the…

Frank Miller and the Decision to Prosecute

Wayne A. Logan and Frank J. Remington
Frank Miller’s book, Prosecution, provides many examples of how careful observation of existing prosecutorial practices can furnish a basis for reconsidering the propriety of existing legal doctrine and day-to-day practice. Unfortunately, the limited space available here precludes any such exhaustive catalog. Nevertheless, three issues raised by Miller’s research merit particular attention. The first concerns the use of post-arrest warrants. Miller’s painstaking description of prosecution practices in Wisconsin disclosed that the…

An Essay on Consent(less) Police Searches

Daniel L. Rotenberg
Police searches that are publicly authorized must meet the minimum requirements of the United States Constitution. The fourth amendment requires that searches be reasonable, but often they must also be based on probable cause, conducted pursuant to a search warrant, and confined by particularity of both place to be searched and item to be seized. The one irreducible factor, however, is reasonableness. So much for the obvious. Consent searches present…

A Modest Proposal to Save the Double Jeopardy Clause

George C. Thomas III
Though it did not attract much attention, one of Justice Brennan’s last majority opinions for the Supreme Court effected a major change in the long-standing interpretation of the double jeopardy clause. Brennan’s opinion in Grady v. Corbin affirmed a position I had taken in previous articles, namely that the double jeopardy clause provides some form of protection against reprosecution of the same conduct. I still believe the principle correct. But…

The Drunk, the Insane, and the Criminal Courts: Deciding What to Make of Self-Induced Insanity

Lawrence P. Tiffany
There are genuine cases of involuntary intoxication, temporary insanity, and automatism that are actuated by the combined influence of an ingested substance and a preexisting condition of the body or the mind. Many of these cases have been categorized historically as a pathological reaction to alcohol or, what is the same thing, pathological intoxication. We now know that frequently these episodes are phenomena in which an underlying brain abnormality is…

Judicial Purpose and the Scholarly Process: The Lincoln Mills Case

James E. Pfander
This Article revisits the debate between Douglas and Frankfurter with a view towards assessing the merits of the two Justices’ competing interpretations of section 301. Part I traces the origins of the Taft-Hartley Act and the likely attitudes of Douglas and Frankfurter towards legislation that was meant to curtail the power of trade unions by giving federal courts a larger role in policing industrial conflict. I show that Frankfurter was…

Price Discrimination and Software Licensing: Does the Robinson-Patman Act Fail to Accommodate Modern Technology?

John J. Voorhees Jr.