Hatch 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
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.
Professor Rapaport teaches 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.
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.
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.
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.
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").
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.
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.
The primary text for the National Security Law course will be National Security Law (3rd ed.) by Dycus et al. The first part of the course, taught by Prof. Richard Rosen, will elaborate on the general principals of National Security Law by reviewing the framework of the separate branches of government that share national security responsibilities. Specific topics in the first half will include the roles and powers of the three branches of government and the domestic effect of international law. The second half of the course, taught by Dean Walter Huffman, will address more specific topics, including war, terrorism, the gathering of intelligence, and transborder issues related to the national security of the United States.
One-hour Practicum Course accompanying the Torts, Contracts, and Criminal Law Courses
The Practicum Course is not really a separate course; rather, it is a hands-on, practice-based extension of the Torts, Contracts, and Criminal Law courses. Students explore the theoretical connections among the three courses in the context of resolving simulated but realistic client problems. The course stresses practical and analytical skills through writing exercises while also exploring substantive law questions that are addressed in other first semester courses.
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.
The Elderly of Death Row Should be Deemed Too Old to Execute, 77 Brooklyn Law Review 1089 (2012).
Death Penalty for Women in North Carolina, co-author Victor Strieb, 1 Elon L. Rev. 1 (2009).
Torture After Nuremburg: U.S. Law and Practice, in Rights, Citizenship and Torture, eds. John Parry and Welat Zedan, Inter-Disciplinary Press (Oxford, 2009).
Mad Women and Desperate Girls: Infanticide and Child Homicide in Law & Myth, Women & Crime Symposium, 33 Fordham Urban Law Journal (2006).
Straight is the Gate: Capital Clemency in the United States from Gregg to Atkins, After Atkins Symposium, 33 New Mexico Law Review 349(2003).
The Georgia Immigration Pardons: A Case Study in Mass Clemency, 13 Federal Sentencing Reporter (2001).
Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women’s Capital Cases, 4 Buffalo Criminal Law Review (2001); excerpted in Capital Punishment and the Judicial Proess, 2nd ed., Randall Coyne & Lyn Entzeroth, eds., Carolina Academic Press (2001).
Sex and Politics at the Close of the 20th Century: A Feminist Looks Back at the Clinton Impeachment, in Aftermath: The Clinton Impeachment and the Presidency and in the Age of Political Spectacle, eds. Leonard Kaplan and Beverly I. Moran, NYU Press (2001).
Retribution and Redemption in the Operation of Executive Clemency, Symposium on Law, Psychology, and the Emotions, 74 Chicago-Kent Law Review 1501 (2000).
Death Penalty, Encyclopedia of Women and Crime, Oryx Press (2000).
Capital Murder, Gender, and the Domestic Discount, 49 SMU Law Review 1996.
When is Domestic Homicide a Capital Crime? in The Public Nature of Private Violence: The War Against Women, eds. M. Fineman and R. Mykitiuk (Routlege 1994).
Generalizing Gender: Reason and Essence in the Legal Thought of Catharine MacKinnon, in A Mind of One's Own, eds. Louise Antony and Charlotte Witt (Westview Press: 1992, 2nd ed. 2001).
Gender Discrimination and the Death Penalty 25 Law and Society Review (1991);
Some Questions about Gender and the Death Penalty, 20 Golden Gate Law Review, (1990); excerpted in The Eighth Amendment, Capital Punishment and the Judicial Process, ed. R. Coyne (Carolina Academic Press, 1994; 2nd ed. 2001).
Marx and Ethics Today, in Darwin, Marx and Freud: Their Influence on Ethical Theory, eds. A. Caplan and B. Jennings, Plenum Press (Spring 1984).
Book Review, C. L. Ten, Mill on Liberty, Philosophical Books, (Summer 1982).
Is Democracy Possible? American Philosophical Quarterly, (Summer 1982).
Ethics and Social Policy, Canadian Journal of Philosophy, (June 1981).
Book Review, D. L. Schaefer, Justice or Tyranny? A Critique of Rawls' Theory of Justice, in Ethics, 90 (1980).
Alienated Labor: A Reply to Judith Buber Agassi, Philosophical Forum, Special Issue on Work, X, No. 2-4, (1979).
Reply to L. L. Thomas, `Capitalism vs. Marx's Communism,' Studies in Soviet Thoughts, No. 20, (1979).
Edition of John Stuart Mill's On Liberty, with introduction and annotations, Hackett Publishing Co. (1st ed. 1977, 2nd ed. 1990).
Classical Liberalism and Rawlsian Revisionism, Canadian Journal of Philosophy, Supplementary Volume III, New Essays on Contractarianism, eds. Kai Neilsen and R. A. Shiner (Spring 1977).
One Step Forward, Two Steps Back: Abortion and Ethical Theory, co-authored with Paul T. Sagal, in Sex: From the Philosophical Points of View, eds. F. Elliston, J. English, and M. Vetterling-Braggin, Littlefield Adams (1977).
Anarchism and Authority in Marx's Socialist Politics, European Journal of Sociology, No. 2 (1976).
Describing Moral Weakness, Philosophical Studies, Vol. 28 (1975).
Book Review, S. Rowbotham, Women's Consciousness, Man's World, in Telos, No. 21 (1974).
On the Future of Love: Rousseau and the Radical Feminists, Philosophical Forum, Vol. 5, No. 1 and No. 2 (1973-74);
Explaining Moral Weakness, Philosophical Studies, 24 (1973).
Professor Rapaport will present her paper, "You Can’t Get There From Here: Elderly Prisoners, Prison Down Sizing, and the Insufficiency of Cost Cutting Advocacy" at the Annual Conference of the International Prison and Corrections Association in Colorado Springs in October and at the Aging and Society Conference, University Center Chicago in November.