Harmless Constitutional Error and the Institutional Significance of the Jury

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees--the Sixth Amendment right to jury trial being no exception. However, while a trade-off between important process values and the Constitution\u27s protection of individual rights is inherent in the harmless error rule, recent applications of appellate harmless error review to certain Sixth Amendment errors have exceeded the scope of the initial compromise. Highlighting the current trend of application of appellate harmless error review to jury verdicts based on fewer than all of the required elements of a charged offense, this Article warns that we are approaching the “point of no return” in the evolution of the jury in our constitutional democracy. The Article maintains that the Supreme Court\u27s willingness to sacrifice individual criminal defendants\u27 Sixth Amendment jury trial rights at the altar of efficiency and finality has subverted the constitutional function of the jury itself, and has undermined the jury\u27s institutional role. The Article proposes a new theoretical grounding for the constitutional recognition of the jury\u27s core institutional interests--as distinct from the individual Sixth Amendment jury trial rights currently deemed expendable by the Court--and advances a concrete proposal for the Supreme Court\u27s inclusion of certain jury-related constitutional errors in the category of those structural errors not susceptible to appellate harmless error review

Improving student engagement through employability themed group work

In an ideal world, universities and their departments are able to reach out to employers for collaborative, employer-set, authentic assessment which align industry expectations with an assessment that tests the intended learning outcomes of a module. This is a large and ambitious undertaking for practical reasons. The author identified three practical challenges as: sourcing willing employers, relevance and level-setting, and scalability, i.e., use in modules with large numbers of students. As module leader, each of these challenges were addressed and solutions identified allowing the employability project to be embedded into a module with 150 participating students contributing 30% towards the overall module mark

"Phederalism": The Regulation of Pharmacy Compounding and Two Years in the Regulatory Turf War Between Pharmacy and the Food and Drug Administration

Pharmacy has long been considered among the most popular of professions, with pharmacists consistently topping surveys of whom Americans consider the most honest and ethical professionals. Pharmacy is also one of the most regulated professions. The pharmacy profession has traditionally been regulated at the state level by legislatively-created state boards of pharmacy. These state agencies regulate all aspects of pharmacy practice, including admission to practice, standards of practice, and discipline of pharmacists. While the Food and Drug Administration closely regulates the manufacture and distribution of prescription drugs, the day-to-day practice of pharmacy traditionally has been left to these state boards of pharmacy

Grand Jury Innovation: Toward a Functional Makeover of the Ancient Bulwark of Liberty

The grand jury is a much maligned organ of the criminal justice system.\u27 Regularly employed in only about half of the states and grudgingly tolerated in the federal system,2 the American grand jury for two centuries has been criticized as costly, ineffective, overly-compliant, and redundant. Prescriptions have ranged from reforms designed to improve the grand jury\u27s performance of its traditional filtering and charging functions to the outright abolition of the grand jury. Consequently, much of the scholarly defense of the grand jury seemingly has done little more than attempt to justify its very existence. This Article seeks to take the grand jury on the offensive. Instead of merely proposing ways to enhance the grand jury\u27s performance of traditional roles, or defending it against calls for its elimination, this Article sketches a blueprint for the grand jury\u27s functional makeover. Despite its tattered reputation, the American grand jury boasts an impressive resume, demonstrating capability far beyond the circumscribed functions it is deemed to perform so poorly today. By illuminating the novel and important functions the ancient bulwark of liberty might perform in the modem criminal justice system, this Article paints a portrait of an efficacious and relevant twenty-first-century grand jury

Thinking Outside the Jury Box: Deploying the Grand Jury in the Guilty Plea Process

There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining.\u27Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in a bad light, serious questions arose regarding the necessity of a body that seemed superfluous in an era in which most criminal cases end in guilty pleas. This Article, written for the William & Mary Law Review Symposium, Plea Bargaining Regulation: The Next Criminal Procedure Frontier, considers how plea bargaining might be better regulated and whether the grand jury could play a role in the regulation of plea bargaining-namely, in the determination of the factual basis for pre-indictment guilty pleas and the reasonableness, fairness, and propriety of plea bargains and plea agreements. In this way, the Article evaluates whether the grand jury may serve as a popular accountability mechanism for defense counsel, prosecutors, and judges in the guilty plea process. Part I of this Article examines the recent recognition of the influence and ubiquity of plea bargaining in modern criminal justice and the procedural and substantive safeguards courts have begun to impose in order to regulate the guilty plea process. This Part highlights the lack of popular participation in this world of guilty pleas, and calls for ways to maintain the lay role in the disposition of criminal cases. Part II of this Article proposes a thought experiment. What if we deployed the grand jury in the guilty plea process? Could the supposedly underutilized grand jury provide the vehicle desired for regulation of the plea bargaining regime and inject the popular participation missing in today\u27s criminal justice system? In particular, might the grand jury have a role to play when the court determines whether there is a factual basis for the guilty plea and reviews the terms of the plea agreement? Part III recognizes the significant practical challenges to the use of the grand jury for these purposes and considers practical and philosophical objections to this proposal-particularly those raised by a number of thoughtful and prominent trial judges interviewed by the author. The Article concludes with thoughts on what these judges believe are the most pressing needs for reform in the plea bargaining regime and which solutions are most compelling