Digital Commons Network^™

Underenforcement, Alexandra Natapoff

Fordham Law Review

No abstract provided.

Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell, Daniel J. Capra

Faculty Scholarship

Good evening. This is the Philip Reed program. It is part of the Centennial Celebration of Fordham Law School. The topic tonight is entitled "Federal Sentencing Under 'Advisory' Guidelines."

There are approximately ten district judges who have written what I would refer to as challenging and influential opinions on how federal courts should approach sentencing under advisory Guidelines. We have five of them on this panel.

Our format tonight is to take short opening statements from the judges and then to discuss some particular issues of controversy in sentencing after Booker. I plan to open it up to questions and …

The Detention Of Material Witnesses And The Fourth Amendment, Joseph G. Cook

Scholarly Works

No abstract provided.

The Model Federal Sentencing Guidelines Project: A Simplified Sentencing Grid, Model Sentencing Guidelines §1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the first of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled "'Tis a Gift to be Simple: A Model Reform of the Federal Sentencing Guidelines", available on SSRN at http://ssrn.com/abstract=927929.

A Reckless Response To Rape: A Reply To Ayres And Baker, Kimberly Kessler Ferzan

All Faculty Scholarship

In a recent article in the University of Chicago Law Review, Professors Ian Ayres and Katharine Baker propose the crime of "reckless sexual conduct," criminalizing unprotected first-encounter sexual intercourse. The goals of this proposal are to combat the epidemic of sexually transmitted diseases by requiring condom use and to reduce acquaintance rape by "forcing" communication. While the goals are admirable, the proposal is deeply flawed. As public health legislation, it is overinclusive, thereby punishing the morally innocent, and its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. As rape reform, which is arguably the true aim of …

Turning Jails Into Prisons—Collateral Damage From Kentucky's War On Crime, Robert G. Lawson

Law Faculty Scholarly Articles

The primary purpose of this article is to scrutinize Kentucky's ever-increasing reliance on local jails for the incarceration of state prisoners. This objective cannot be achieved without an examination of the problems that compel counties and cities to allow (and even encourage) the state to capture their jails for this use. The first half of the article (Parts I-IV) provides general information about jails (including some pertinent history), contains a detailed description of jail functions (including some that have descended upon jails by default), and concludes with a discussion of what the state has done over two decades to convert …

Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell

Fordham Law Review

No abstract provided.

To Err Is Human, Keith A. Rowley

Scholarly Works

This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …

Murder After The Merger: A Commentary On Finkelstein, Kimberly Kessler Ferzan

All Faculty Scholarship

Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In "Merger and Felony Murder," Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make "an incremental improvement" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less "mysterious" and its application "substantially clearer." Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part …

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we …

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 …

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 …

Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman

UF Law Faculty Publications

This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …

Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel

UF Law Faculty Publications

This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is …

Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Defendants have the same right to offer Rule 404(b) evidence as prosecutors, and they are not required to give pretrial notice under the Federal Rules of Evidence. When defendants offer this evidence, they attempt to prove that someone else is guilty of the crime attributed to them. This often is referred to as reverse Rule 404(b) evidence. Some defense evidence will be admitted - indeed the Confrontation Clause or Compulsory Process Clause may require admission in some cases - but not all defense evidence will be admitted. The issue is where to draw the line between admissible and inadmissible evidence. …

Less Is Better: Justice Stevens And The Narrowed Death Penalty, James S. Liebman, Lawrence C. Marshall

Faculty Scholarship

In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par …

Culture As Justification, Not Excuse, Elaine M. Chiu

Faculty Publications

The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants …

Culture In Our Midst, Elaine M. Chiu

Faculty Publications

Culture, like race, class, gender, sexual orientation and wealth is one of many ways in which the law is not neutral. Indeed, culture is a source of law. Yet, as traditional legal positivists have taught us, the law or legal doctrine can prove to be more powerful than culture, often outlasting it. The “mirror image” theory states that the laws of a particular locale reflect the culture of that locale. The law merely serves as enforcement of the common decency, propriety and morality of that culture. Not only is this understanding appealingly simple, it is often invoked by judges and …

Ontario (Attorney General) V. $29, 020 In Canadian Currency: A Comment On Proceeds Of Crime And Provincial Civil Forfeiture Laws, Michelle Gallant

Michelle Gallant

Many provinces are embracing a modern approach to crime control, an approach which uses civil proceedings, primarily a device known as forfeiture, to tackle criminal activity. The strategy targets the financial underpinnings of crime, the proceeds or the assets linked to illegal activity. It effectively gives the public actor the ability to use civil actions to recover financial resources tainted by criminality.

New to provincial law, this convergence of civil proceedings and crime, of civil forfeiture and the financial element of crime, invites obvious questions about the consistency of this approach with constitutional norms. On the jurisdictional front, there is …

Hate Crime Law And The Limits Of Inculpation, Janine Young Kim

Janine Kim

The Role Of Retributive Justice In The Common Law Of Torts: A Descriptive Theory, Ronen Perry

Ronen Perry

This article is the first academic attempt to explain in a systematic manner how the "third-form-of-justice", usually thought of as one of the theoretical foundations of criminal law, operates within the law of torts. Tort jurisprudence is definitely not the natural habitat for retributive concerns. Since retributive justice is technically inconsistent with the corrective structure of tort law its role is (and probably ought to be) very limited. The article first explains the notion of retributive justice and defends the view that it constitutes a third form of justice, distinct from the classical Aristotelian forms. It then rejects monistic retributive …

The Conviction Of Lynne Stewart And The Uncertain Future Of The Right To Defend, Tamar R. Birckhead

Tamar R Birckhead

At the heart of the attorney-client relationship lies the ability to communicate freely and without fear that someone is listening. Since 9/11, the government has passed regulations, such as the Special Administrative Measures ("SAMs"), that by virtue of their broad scope and lack of procedural safeguards have endangered this privilege, particularly for incarcerated criminal defendants. The recent conviction of attorney Lynne Stewart for providing material support to a foreign terrorist organization has brought this issue to the forefront, as the prosecution relied upon government-monitored conversations between Stewart and her client, convicted terrorist Sheik Abdel Rahman, to prove its case against …

Parsing Personal Predilections: A Fresh Look At The Supreme Court’S Cruel And Unusual Death Penalty Jurisprudence, Susan Raeker-Jordan

Susan Raeker-Jordan

No abstract provided.