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Professor Elizabeth Rapaport

Elizabeth Rapaport

Emeritus Professor of Law and Professor of Philosophy
B.A. 1965, City College of New York
J.D. 1987, Harvard University
Ph.D. 1971, Case Western Reserve University

 Curriculum Vitae  UNM-DR    SSRN

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Profile

Elizabeth Rapaport joined the UNM law faculty in 1995. Prior to coming to UNM she taught Philosophy at Boston University and Public Policy at Duke University.

Much of Professor Rapaport’s current research explores legal avenues to foster compassionate release and humane carceral care for the rapidly growing population of elderly prison inmates. She has a continuing interest in executive clemency, about which she writes, teaches, lectures, and consults. Rapaport has led the UNM School of Law Clemency Project in which students represent New Mexico clemency petitioners.

Rapaport’s law scholarship includes extensive publications on gender and capital punishment, pursuing gender questions beyond condemnation into post conviction determinations of sentence reduction, clemency, and execution. In addition to empirically informed work on the capital punishment system, she has written in a theoretical vein about gender and the law of homicide, and other topics in feminist jurisprudence. Her research interests in philosophy are principally in ethics and moral psychology.

While Professor Rapaport is now emerita status, she still teaches occasionally. Her classes include criminal law, constitutional criminal procedure, international criminal law, national security law, jurisprudence, and legal ethics.

Since coming to UNM Professor Rapaport has been a visiting professor at the law schools of Duke University, North Carolina Central University, University of Connecticut, Rutgers University, and the University of San Francisco.

In the News

 

Clemency Law Practicum

Executive Clemency in the United States

Executive clemency is a power of the executive at the federal and state level to issue pardons and commute sentences. The seminar will study the operation of this power, with emphasis on the federal level and New Mexico. In addition to classroom study, seminar members will undertake to assist clients in seeking New Mexico pardons, possibly some federal pardons, and may also undertake some commutation cases. Professor Rapaport is currently enrolling New Mexico pardon clients for this project and exploring possible commutation cases. The number and type of clients assisted will depend in part on student enrollment and the appetite of the students.

The seminar will be a hybrid classroom and practical class. The seminar will study the law expounding the nature and limits of executive clemency power; the history of executive clemency in the United States; clemency regulations and practice at the federal level and in New Mexico; the components of clemency cases; the incarceration crisis in the United States; the collateral (post release) consequences of conviction, including those for immigrants; the jurisprudence of forgiveness, Topics include capital clemency; clemency for battered women; the war on drugs; clemency for immigrants. Students will represent clients seeking clemency.

The seminar will include guest presentations by experts and practitioners.

Criminal Law I

This course considers the general principles of substantive criminal law and evaluates them in terms of the various purposes that justify a system of criminal punishment. It will include an analysis of the doctrines of mens rea attempt, complicity, and conspiracy as well as certain crimes such as homicide and certain defenses such as self-defense.

Criminal Procedure I (4th, 5th, 6th Amendments)

This course will cover the pretrial stages of a criminal case and the Constitution's impact on criminal procedure. Classes will focus upon criminal/constitutional issues with emphasis on the Fourth, Fifth, and Sixth Amendments. Subjects covered will include searches and seizures, statements/confessions, due process, and line-ups.

Ethics

We will study the rules governing the professional conduct of lawyers and explore the values of the legal system which justify and explain those rules. Specific subject matter includes: the duties of competence, confidentiality, and loyalty; acquisition and retention of clients (including undertaking representation, advertising, solicitation, and withdrawal from representation); and problems concerning the manner of representation (the "Principle of Professionalism" and "zealous advocacy within the bounds of the law").

See Professor for course description.

Interrogation and the Global War on Terrorism

In May, 2004 news accounts of torture and abuse of prisoners at Abu Ghraib by American military and intelligence personnel erupted in the U. S. press. These stories joined a smaller stream of news accounts of the use of torture in interrogations in Afghanistan, Guantanamo Bay, and in assorted secret sites maintained by U.S. and allied governments, as well as the first accounts of the practice of the rendition by the U.S. of prisoners to countries that routinely use torture in interrogation. Since May, 2004, accounts of torture by, or at the behest of, U.S. authorities conducting the Global War on Terror (GWOT) have multiplied, and indeed, have reached flood stage. Abu Ghraib, it is now clear, was not an aberration, but the new norm. The new norm poses epochal challenges to American law and society. Both domestic and international law ban torture absolutely as a method of interrogation, forbid the practice of torture for any reason and in any circumstances. Yet, since the beginning of the GWOT, pragmatists have argued that torture for the sake of gaining useful life saving intelligence is both necessary and justified. It has been argued that interrogation for this purpose should be practiced even if it means that prosecution will be sacrificed because the fruits of torture would be inadmissible as evidence: This view is that prevention is more important than conviction. It has also been argued that the law should be changed to allow the fruits of torture to be used in courts of law. Either course has profound implications not only for the law of war and human rights law, but also for domestic criminal procedure.

The Seminar will investigate the pressures leading to the new permissive torture paradigm and evaluate the case for and against this shift. To that end, we will examine the question of the efficacy of torture; we will look at the historical record, including the experience garnered within living memory of the last several generations of war, conflict, and domestic criminal justice. We will examine the questions, is torture an effective method of producing useful, truthful intelligence? If so, is it indispensable to the GWOT? How should the present confrontation between U.S. practice and international and domestic law be resolved? What are the implications for U.S. domestic criminal procedure of a shift to countenancing torture, i.e, does the life saving rationale, if it succeeds in justifying torture, argue for similar interrogation procedures in domestic criminal cases?

This seminar is open to law students, and to medical students, and graduate students in social science and history by permission of the instructor.

Jurisprudence

Whether you are aware of it or not, you have imbibed a distinctive philosophy of law along with your legal education. A century ago lawyers and judges had a different understanding of law. Views have continued to change over the generations. Jurisprudence 555 will give students the opportunity to hold up the view of law they has picked up by osmosis in the law school classroom to critical reflection. The class will look at the history of thinking about what law is from the founding of the modern law school to the present. Although philosophies have changed, some fundamental questions have been posed and answered throughout this history: (1) Is law autonomous and distinct from other fields of knowledge and social practices? (2) Is law a science? (3) What is the relationship between law and morality? (4) What do judges do? The course will be divided into two parts. Part I examines the unfolding of the answers to these questions by lawyers, judges and legal scholars over the history that shapes current understanding and practice. In Part II the class will examine the array of jurisprudential movements that play a vital role in contemporary thinking about law. These include the critical jurisprudence movements, critical legal studies, critical race theory, feminist jurisprudence, and law and economics.

National Security

This course explores the fundamental constitutional and legal issues that arise in the national security context, paying particular attention to the roles of various actors, such as the executive and the courts, in times of war. Students' exploration of national security will begin with the founding era and move forward to other historical moments, such as the Civil War, World War II, and the Korean War, ending with current post-9/11 developments.

At the end of the semester, students will participate in a simulation in which students will be asked to assume various roles and respond to a hypothetical crisis. Students may elect to take this course as a writing seminar, in which case students will be expected to write a research paper of publishable quality, or as a traditional seminar, in which case students will be expected to write shorter briefs throughout the semester.

Practicum

This class introduces you to the work and professional roles of lawyers. It investigates the meaning of professionalism; examines the role of personal and professional values in becoming and being a lawyer; and discusses various aspects of legal practice, including ways to improve your likelihood of success and happiness in your career.

As background, empirical studies show that lawyers who pick their fields carefully based upon their own strengths and needs are happier and do better in the profession overall. Other studies show that multitasking and excessive stress interfere with clear thinking. Indeed, calm focused people are better at what they do, whatever profession they enter. They are also more efficient and work better with others. Calm focused people are also happier and have a better sense of their own priorities and values. This class is designed to:

  • help you learn about the legal system and the professional role of attorneys;
  • help you create space in your life for activities that keep you balanced as a human being;
  • help you control stress and thus enhance your academic and professional success;
  • help you improve your interpersonal skills;
  • allow you to develop a support system at the law school by getting to know some of your peers in an unconventional setting; and
  • allow you to develop a relationship with a faculty member that is supportive both inside and outside the classroom.

Being a lawyer can be all you want it to be and can give you the power to bring about whatever change you want to see. This class will help prepare you to do just that.

Terrorism and the Law

Two positions, or paradigms, have emerged which attempt to make comprehensive sense of American law and policy since 9/11/01, the civil liberties paradigm and the prevention paradigm. The prevention paradigm maintains that in the face of the current “catastrophic emergency,” the executive must be given wide discretion, e.g., to detain, interrogate, and try enemy aliens and citizens suspected of supporting or engaging in terrorist acts, without congressional authorization and without judicial review or supervision. The civil liberties paradigm, in its most expansive version, envisions that any derogation whatever from the model of the criminal trial subject to all constitutionally mandated procedures and protections for anyone in U.S. custody, in the U.S.A. or extraterritorially, will lead to severe and perhaps permanent corruption of our constitutional democracy. The question debated between the two camps is, what is the proper balance between security and liberty in the era of the global war on terror? At the international level similar questions are projected with respect to tensions between defense and security on the one hand and international law and human rights on the other.

Topics will include what is terrorism, terrorism and domestic civil liberties, terrorism and international law, impact of the global war on terrorism on domestic criminal procedure including investigation, detention and trial, immigration law, military law and international law.

Publications

Books & Book Chapters

Torture After Nuremburg: U.S. Law and Practice, Rights, Citizenship and Torture (John Parry and Welat Zedan eds., 2009).
Available at: UNM-DR

Women are no Longer Spared the Death Penalty because of their GenderThe Death Penalty (Jean Alicia Elster ed., 2005).
Available at: UNM-DR

Sex and Politics at the Close of the 20th Century: A Feminist Looks Back at the Clinton Impeachment, Aftermath: The Clinton Impeachment and the Presidency and in the Age of Political Spectacle (Leonard Kaplan and Beverly I. Moran eds., 2001).
Available at: UNM-DR

Death Penalty,Encyclopedia of Women and Crime (2000).
Available at: UNM-DR

When is Domestic Homicide a Capital Crime?, The Public Nature of Private Violence: The War Against Women (Martha Fineman and Roxanne Mykitiuk eds., 1994).
Available at: UNM-DR

Generalizing Gender: Reason and Essence in the Legal Thought of Catharine MacKinnon, A Mind of One's Own: Feminist Essays on Reason and Objectivity (Louise Antony and Charlotte Witt eds., 2001 [1992]).
Available at: UNM-DR

Marx and Ethics Today, Darwin, Marx and Freud: Their Influence on Ethical Theory (Arthur Caplan and Bruce Jennings eds., Spring 1984).
Available at: UNM-DR

John Stuart Mill's On Liberty (1990 [1977]).
Available at: UNM-DR

One Step Forward, Two Steps Back: Abortion and Ethical Theory, Sex: From the Philosophical Points of View (F. Elliston et al. eds., 1977) (co-authored with Paul T. Sagal).

Articles

You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy, WHITE PAPER (2013).
Available at: UNM-DR

A Modest Proposal: The Aged of Death Row Should be Deemed too Old to Execute, 77 BROOKLYN L. REV. 1089 (2012).
Available at: UNM-DR

Death Penalty for Women in North Carolina, 1 ELON L. REV. 1 (2009) (co-authored with Victor Strieb).
Available at: UNM-DR

Mad Women and Desperate Girls: Infanticide and Child Homicide in Law & Myth, 33 FORDHAM URBAN L.J. (2006) (Women & Crime Symposium).
Available at: UNM-DR

Straight is the Gate: Capital Clemency in the United States from Gregg to Atkins, After Atkins Symposium, 33 N.M. L. REV. 349 (2003).
Available at: NMLR

The Georgia Immigration Pardons: A Case Study in Mass Clemency, 13 FED. SENTENCING REP. (2001).
Available at: UNM-DR

Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women’s Capital Cases, 4 BUFF. CRIM. L. REV. (2001).
Available at: UNM-DR

Equality of the Damned: The Execution of Women on the Cusp of the 21st Century, 26 OHIO N. UNIV. L. REV. 581 (2000).
Available at: UNM-DR

Retribution and Redemption in the Operation of Executive Clemency, 74 CHI.-KENT L. REV. 1501 (2000) (Symposium on Law, Psychology and the Emotions).
Available at: UNM-DR

Capital Murder and the Domestic Discount: A Study of Capital Domestic Murder in the Post Furman Era, 49 SMU L. REV. 1507 (1996).
Available at: UNM-DR

The Death Penalty and Gender Discrimination, 25 L. & SOC'Y REV. (1991).
Available at: UNM-DR

Some Questions about Gender and the Death Penalty, 20 GOLDEN GATE L. REV. (1990).
Available at: UNM-DR

Is Democracy Possible?, 19 AM. PHILOSOPHICAL Q. 355 (Oc1982).
Available at: JSTOR

Ethics and Social Policy, 11 CAN. J. PHILOSOPHY 285 (June 1981).
Available at: Taylor & Francis

Alienated Labor: A Reply to Judith Buber Agassi, 10.2-4 PHILOSOPHICAL FORUM: SPECIAL ISSUE ON WORK (1979).

Reply to Laurence Thomas, `Capitalism vs. Marx's Communism', 20.1 STUDIES IN SOVIET THOUGHTS 81 (July 1979).
Available at: JSTOR

Anarchism and Authority in Marx's Socialist Politics, 2 EUROPEAN J. SOCIOLOGY (1976).
Available at: Cambridge U.P.

Classical Liberalism and Rawlsian Revisionism, 7 CAN. J. PHILOSOPHY 95 (Spring 1977) (Supplementary Volume 3: New Essays on Contract Theory).
Available at: Taylor & Francis

Describing Moral Weakness, 28.4 PHILOSOPHICAL STUDIES 273 (October 1975).
Available at: Springer

On the Future of Love: Rousseau and the Radical Feminists, 5.1-2 PHILOSOPHICAL FORUM (1973-74).

Explaining Moral Weakness, 24.3 PHILOSOPHICAL STUDIES 174 (May 1973).
Available at: Springer

Popular Press

High Crimes and Misdemeanors: A View From the #MeToo Era, LAW 360 (July 2018).
Available at: UNM-DR

Book Reviews

D. L. Schaefer's Justice or Tyranny? A Critique of Rawls' Theory of Justice, ETHICS 90 (1980).

C. L. Ten's Mill on Liberty, PHILOSOPHICAL BOOKS (Summer 1982).

S. Rowbotham's Women's Consciousness, Man's World, 21 TELOS (1974).
Available at: UNM-DR

Presentations

"Two (or Three) Kinds of Mercy," Mercy in the Administration of Criminal Justice, Southeastern Association of Law Schools Annual Meeting (August 7, 2014).

You Can’t Get There From Here: Elderly Prisoners, Prison Down Sizing, and the Insufficiency of Cost Cutting Advocacy, Annual Conference of the International Prison and Corrections Association in Colorado Springs (October) & Aging and Society Conference, University Center Chicago (November).

Impact

Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women’s Capital Cases, 4 BUFFALO CRIMINAL L. REV. (2001).

Excerpted: Capital Punishment and the Judicial Proess (Randall Coyne & Lyn Entzeroth, eds., 2nd ed. 2001).

Some Questions about Gender and the Death Penalty, 20 GOLDEN GATE L. REV. (1990).

Excerpted: The Eighth Amendment, Capital Punishment and the Judicial Process (R. Coyne ed., 2001).

Gender Discrimination and the Death Penalty, 25 L. & SOC'Y REV. (1991).

Reprinted: A Capital Punishment Anthology (V. Strieb ed., 1993).

Reprinted: Criminology in the 1990s (J. Conklin ed., 1996).

Excerpted: Criminal Law and its Processes: Cases and Materials (Kadish & Schulhofer eds., 7th ed. 2001).

Excerpted: Criminal Law: Case Studies and Controversies (P.H. Robinson ed., 2005).

Excerpted: Capital Punishment, Volume 3: Litigating Capital Cases (M. Koosed ed., 1996).

On the Future of Love: Rousseau and the Radical Feminists, 5.1-2 PHILOSOPHICAL FORUM (1973-74).

Reprinted: Women and Philosophy: Towards a Philosophy of Liberation (Gould & Wartofsky eds.)

Reprinted: Women in Western Thought (M. L. Osborne ed., 1979).

Reprinted: Contemporary Readings in the Philosophy of Sex (Alan Soble & Littlefield Adams eds., 1979).

Reprinted: The Philosophy of Love (R.C. Solomon & Kathleen Higgins eds., 1991).

Law School News