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Articles 1 - 30 of 44
Full-Text Articles in Entire DC Network
Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam Kolber
Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam Kolber
Faculty Scholarship
No abstract provided.
The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard
The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard
Faculty Scholarship
No abstract provided.
Desert, Democracy, And Sentencing Reform, Alice Ristroph
Desert, Democracy, And Sentencing Reform, Alice Ristroph
Faculty Scholarship
No abstract provided.
An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard
An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard
Faculty Scholarship
This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …
Carousel Fraud In The Eu: A Digital Vat Solution, Richard Thompson Ainsworth
Carousel Fraud In The Eu: A Digital Vat Solution, Richard Thompson Ainsworth
Faculty Scholarship
Recent reports from the UK's Office for National Statistics estimate (as of May 11, 2006) that Missing Trader Intra-community Fraud (MTIC) may exceed 10 billion pounds this year.
Carousel fraud, a variant of MTIC where the same goods are sold over and over again, exploits the lingering non-certified, non-digital attributes of the EU VAT. The UK believes that carousel fraud cost the Exchequer between 1.12 and 1.9 billion pounds in the 2004-05 financial year. This article proposes that carousel fraud be eliminated in the EU through selective insertion of Digital VAT functionality into the present system. In other words, it …
Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal
Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal
Faculty Scholarship
No abstract provided.
The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers
The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers
Faculty Scholarship
No abstract provided.
When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs
When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs
Faculty Scholarship
Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …
You Drink, You Drive, You Lose: Or Do You?, Tina Wescott Cafaro
You Drink, You Drive, You Lose: Or Do You?, Tina Wescott Cafaro
Faculty Scholarship
This Article explores different ways to effectively discourage the crime of alcohol impaired driving. Part I analyzes the trend of utilizing preventive educational measures to counteract societal acceptance of this crime and the shortcomings of relying exclusively on this measure. Part II discusses OUI prevention based on deterrence and the use of stricter penalties, such as mandatory jail sentences, to stop alcohol impaired drivers. This section explores whether the trend of increasing the severity of the punishment for OUI offenses is effective in stopping the crime. This section also discusses the shortcomings of OUI legislation that make deterrence of OUI …
Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay
Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay
Faculty Scholarship
Almost 30 years ago, in Manson v. Brathwaite--the Supreme Court set out a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police procedures. The Manson Court rejected a per se exclusion rule in favor of a test focusing on whether an identification infected by suggestive procedures is nonetheless reliable when judged in the totality of the circumstances. The purpose of this Article is two-fold: to demonstrate that the Manson rule of decision fails to safeguard due process values, in part because it does not account for the intervening social science research, and to …
Instituting Innocence Reform: Wisconsin's New Governance Experiment, Kate Kruse
Instituting Innocence Reform: Wisconsin's New Governance Experiment, Kate Kruse
Faculty Scholarship
The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The …
Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar
Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar
Faculty Scholarship
This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. The jury is a unique institution that draws upon laypersons to decide whether a person charged with a crime is guilty or innocent. Although the jury is instructed and guided by a trial judge and procedural rules shape what the jury is allowed to hear, ultimately the laypersons deliberate alone and render their verdict. A basic principle of the jury system is that at the start of trial the jurors should …
Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet
Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet
Faculty Scholarship
Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on …
Novel Criminal Fraud, Samuel W. Buell
Novel Criminal Fraud, Samuel W. Buell
Faculty Scholarship
The crime of fraud has been underdescribed and undertheorized, both as a wrong and as a legal prohibition. These deficits contribute to contention and uncertainty over the practice of punishing white-collar crime. This Article provides a fuller account of criminal fraud, describing fraud law's open-textured, common-law, and adaptive qualities and explaining how fraud law develops along its leading edge while limiting violence to the legality principle. The legal system has a surprising, often overlooked methodology for resolving whether to treat novel commercial behaviors as frauds: Courts and enforcers often conduct an ex post examination of whether an actor's mental state …
The Rehnquist Court And The Death Penalty, Erwin Chemerinsky
The Rehnquist Court And The Death Penalty, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
The Blaming Function Of Entity Criminal Liability, Samuel W. Buell
The Blaming Function Of Entity Criminal Liability, Samuel W. Buell
Faculty Scholarship
Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …
Comment, Saving Toby: Extortion, Blackmail, And The Right To Destroy, Stephen E. Sachs
Comment, Saving Toby: Extortion, Blackmail, And The Right To Destroy, Stephen E. Sachs
Faculty Scholarship
On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life. Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others …
The Clinician As Ethical Role Model In The Criminal Appellate Litigation Clinic, J. Thomas Sullivan
The Clinician As Ethical Role Model In The Criminal Appellate Litigation Clinic, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
Faculty Scholarship
The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …
The Scientific Shortcomings Of Roper V. Simmons, Deborah W. Denno
The Scientific Shortcomings Of Roper V. Simmons, Deborah W. Denno
Faculty Scholarship
This Article contends that some of the case law and social science research that form the basis for the United States Supreme Court's decision in Roper v. Simmons are insufficient and outdated. The Court also relies heavily upon briefs submitted by the respondent and his amici, in lieu of providing more pertinent citations and analysis that could have enhanced and modernized the Court's arguments. The sparse and sometimes archaic sources for Roper potentially limit the opinion's precedential value. For example, the Court cites Erik Erikson's 1968 book, Identity: Youth and Crisis, to support the view that, relative to adults, juveniles …
Vitality Of Voluntary Guidelines In The Wake Of Blakely V. Washington: An Empirical Assessment, The Articles On Guideline Operation Issues, John F. Pfaff
Faculty Scholarship
This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v. Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear …
Aba Files Amicus Brief In Actual Innocence Case, Rory K. Little
Aba Files Amicus Brief In Actual Innocence Case, Rory K. Little
Faculty Scholarship
No abstract provided.
The Legality Of The Nsa Wiretapping Program, Evan Tsen Lee
The Legality Of The Nsa Wiretapping Program, Evan Tsen Lee
Faculty Scholarship
No abstract provided.
Teaching Reflective Lawyering In A Small Case Litigation Clinic: A Love Letter To My Clinic Papers Presented At The Ucla/Ials Conference On Enriching Clinical Education, Ian Weinstein
Faculty Scholarship
This article describes a live client, small case, teaching and learning centered, criminal defense clinic set in a high volume urban court. It offers concrete suggestions about how clinical educators can help students develop analytic and technical skills. The clinic model is conceived in three phases: giving students the opportunity to develop a contextualized understanding of the client; guiding students through strategic analysis and planning; and focusing students' litigation strategies on executing their tactical vision for their client. The article argues that this clinical setting structures the students' experiences so that they develop a complex and deeply moral lawyerly problem …
Newfound Religion: Mothers, God, And Infanticide, Susan Ayres
Newfound Religion: Mothers, God, And Infanticide, Susan Ayres
Faculty Scholarship
This essay focuses on cultural constructions of infanticide and psychosis, especially cases in which the mother heard delusional commands to kill her children. Part I examines the background of the Yates, Laney, and Diaz cases. Part II explores whether these mothers can be seen paradoxically as feminist subjects of empowerment rather than as victims. This essay argues that psychotic mothers have been disempowered and silenced, so their acts cannot be seen as subversive feminist gestures. Part III, however, arguest that the legal trials of Laney and Diaz demonstrate a possible subversion through trial strategy. These two trials more fully told …
Blameworthiness, Intent And Cultural Dissonance, Nancy Kim
Blameworthiness, Intent And Cultural Dissonance, Nancy Kim
Faculty Scholarship
Criminal law assumes that the judge and jury share the same cultural and experiential framework as the defendant; accordingly, crimes are defined with this assumption as an underlying premise. In this article, I will explain how the determination of mens rea often fails to reflect culpability because the definition of crimes fail to account for the cultural dissonance that often exists between the judge/juror and the accused. In this Article, I propose an analysis and reconceptualization of intent that bridges gaps in perception and understanding attributable to cultural dissonance.
Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza
Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza
Faculty Scholarship
What is “transnational” criminal law? One possibility is foreign criminal law, meaning the scope and substance of what is deemed criminal behavior in other lands and the theories that ostensibly justify punishing for such behavior, indeed deeming it criminal in the first place. Another is foreign criminal procedure, the “how” of foreign criminal law’s “what” and “why”: the rules and practices of investigating crime, prosecuting suspected criminals, and adjudicating criminal cases in other lands or systems. More common meanings, judging from articles in U.S. law reviews, are comparative criminal law and comparative criminal procedure, though these might differ from their …
Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert D. Sloane
Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert D. Sloane
Faculty Scholarship
Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a 'common law' of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging 'penal regime', and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, I argue, sentencing must, but has not yet, become an integral part …
Continued Vitality Of Structured Sentencing Following Blakely: The Effectiveness Of Voluntary Guidelines, The , John F. Pfaff
Continued Vitality Of Structured Sentencing Following Blakely: The Effectiveness Of Voluntary Guidelines, The , John F. Pfaff
Faculty Scholarship
In two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these claims have been made without any meaningful empirical consideration of whether viable alternatives exist. This Article fills that gap. It explores the extent to which voluntary, nonbinding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it …
Public Attitudes About The Culpability And Punishment Of Young Offenders, Elizabeth S. Scott, N. Dickon Reppucci, Jill Antonishak, Jennifer T. Degennaro
Public Attitudes About The Culpability And Punishment Of Young Offenders, Elizabeth S. Scott, N. Dickon Reppucci, Jill Antonishak, Jennifer T. Degennaro
Faculty Scholarship
Conventional wisdom holds that the public supports harsh punishment of juvenile offenders, and politicians often argue that the public demands tough policies. But public opinion is usually gauged through simplistic polls, often conducted in the wake of highly publicized violent crimes by juveniles. This study seeks to probe public opinion about the culpability of young offenders as compared to adult counterparts through more nuanced and comprehensive measures in a neutral setting (i.e. not in response to a high profile crime or during a political campaign when the media focuses on the issue). The opinions of 788 community adults were individually …