Digital Commons Network^™

“Runaway Train” : Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl

Matthew C. Dahl

No abstract provided.

Toward A Theory Of Procedural Justice For Juveniles, Tamar R. Birckhead

Tamar R Birckhead

Courts and legislatures have long been reluctant to make use of the data, findings, and recommendations generated by other disciplines when determining questions of legal procedure affecting juveniles, particularly when the research has been produced by social scientists. However, given the United States Supreme Court’s recent invocation of developmental psychology in Roper v. Simmons, which invalidated the juvenile death penalty, there is reason to believe that such resistance is waning. In 2005 the Simmons Court found, inter alia, that based on research on adolescent development, juveniles are not as culpable as adults and, therefore, cannot be classified among the “worst …

Commercial Bribery And The New International Norms, Don R. Berthiaume

Don R Berthiaume

The United States, through its Foreign Corrupt Practices Act (FCPA), and the member nations of the Organization for Economic Co-Operation and Development (OCED) and Council of Europe (CoE) who have adopted similar legislation have made tremendous strides in hindering corrupt payments to foreign officials relating to business transactions. In response to these enforcement initiatives, many international businesses have taken steps to comply with anti-bribery laws by developing compliance programs and conducting internal investigations and cooperating with law enforcement officials when allegations of corrupt payments arise.

Defining “Sexual Abuse Of A Minor” In Immigration Law: Finding A Place For Uniformity, Fairness And Feminism, Kate Barth

Kate S. Barth

This article examines the circuit split over the proper definition of the term "sexual abuse of a minor" in the Immigration and Nationality Act, using considerations of fairness, uniform application of the law, and feminist perceptions of the purpose of statutory rape laws to help guide analysis. The Board of Immigration Appeals, the Second, Third, Fifth, Seventh, and Eleventh Circuits have tied the term "sexual abuse of a minor" to the definition given in 18 U.S.C § 3509(a)(8). The Ninth Circuit, on the other hand, recently decided that the term should more properly be tied to the definition given in …

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Bowman

Mary N. Bowman

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Kids These Days: Teenage Sexting And How The Law Should Deal With It, Michael Parker

Michael R Parker

Since time immemorial members of the youngest generation have managed to create new and unique ways to offend and disgust their predecessors. The most recent of these is “sexting.” Sexting, the practice of sending or posting sexually suggestive text messages and images via cell phone or internet, is a new phenomenon which has recently gained significant momentum. In fact, according to a recent study, almost twenty-percent of all teens have participated. And although this new trend is socially acceptable amongst teenagers, the legislature has been slow, if not absent, in adapting legislation to address it. Almost every state continues to …

Psychologising Jekyll, Demonising Hyde: The Strange Case Of Criminal Responsibility, Nicola Lacey

Nicola Lacey

Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility

Nicola Lacey

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal …

In Search Of The Booker Revolution, Ryan W. Scott

Ryan W. Scott

In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory. Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly minor changes. The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision. That omission is critical, given that the reduction of inter-judge disparity was the central purpose of …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

Looking For Trouble: Framing And The Dignitary Interest In The Law Of Self-Defense, Margaret Raymond

Margaret Raymond

This article addresses when an actor can be denied a claim of self-defense based on the fact that, at an earlier point in time, she could have avoided the ultimate violent encounter in which she resorted to the use of lethal force. The article analyzes the issue as a problem of “framing,” relying on research from the area of cognitive psychology to point out the critical importance of the framing of an issue to its ultimate resolution. It then identifies a persistent error in the writing of many scholars about this problem. While most commentators assert that the law draws …

United States V. Santos: The U.S. Supreme Court Rewrites The Money Laundering Statute, Stefan D. Cassella

Stefan D Cassella

The United States Supreme Court has upset decades of money laundering case law, by construing the term “proceeds” to mean “net profits” instead of “gross receipts” in at least some money laundering cases. In the resulting confusion, lower courts have struggled to determine when the Court’s ruling applies, and how the Government may satisfy the “profits” requirement when it must do so. This article discusses the Court’s decision in United States v. Santos and the problems that it has created, and attempts to make sense of the post-Santos case law.

Criminal Forfeiture Procedure In 2009: A Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This article collects all of the cases decided in the past year dealing with the procedure for incorporating asset forfeiture in a federal criminal case, including the order of forfeiture in the defendant's sentence, and resolving the claims of third parties.

Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition Of The Death Penalty And Convincing Other States To Follow Suit, James Johnston

James B Johnston

For those who detest capital punishment Christmas arrived early in 1997. On December 17, 2007 New Jersey became the first State to abolish the death penalty via enactments from both the executive and legislative branches of government. The responses both domestically and abroad have been overwhelmingly supportive. New Jersey was able to do so thanks to the work of the New Jersey Death Penalty Study Commission; a blue ribbon panel of individuals appointed by Governor Corzine to study capital punishment and provide their findings to the State Legislature and the Governor. The commission recommended the death penalty be abolished and …

Goodbye Forfeiture, Hello Waiver: The Effect Of Giles V. California, Monica J. Smith

Monica J Smith

In cases where a defendant’s actions caused a victim to be unavailable to testify, it had become common practice for courts to apply the doctrine of forfeiture by wrongdoing as an equitable principle. In 2008, the Supreme Court decided Giles v. California, and altered that exercise by adding a requirement that a defendant must actually intend to prevent a witness from testifying in order for forfeiture by wrongdoing to apply. The effect of the Supreme Court’s decision in Giles is a move from the doctrine of forfeiture by wrongdoing to a waiver of the confrontation right by misconduct, thereby aligning …

A Fair And Implicitly Impartial Jury: An Argument For Administering The Implicit Association Test During Voir Dire, Dale Larson

Dale K Larson

While many refer to jury selection as a science, others—perhaps more accurately—liken the process to voodoo. The jury consulting industry has exploded over the last thirty years, with many attorneys paying large amounts for voir dire for erratic and unpredictable results and a general inability to detect bias accurately in potential jurors. One explanation for these poor results, even when using the latest findings in the scientific jury selection field, is that the tools currently available to attorneys and jury consultants give us only a partial picture of the individuals in question. Currently, voir dire consists of oral questioning and …

Past Present And Future Of White Collar Sentencing In The First Circuit In The Wake Of Advisory Guidelines And The Impact Of The Sentencing Equity Fairness And Restoration Act Of 2007, John J. Cronan

John J Cronan

Although the First Circuit has taken the stance that within guidelines sentences are presumptively reasonable, the First Circuit continues to be one of the minority circuits that departs from the guidelines higher than the national average. This is likely the result of zealous district court judges eager to regain their autonomy after the Booker decision. Exactly what the future holds for the First Circuit is uncertain – but three possibilities remain likely. First, Congress could enact the Sentencing Fairness Equity Restoration Act, essentially stifling any progress in the judiciary. The second possibility is that the First Circuit court of appeals …

Human Dignity Under The Fourth Amendment, John D. Castiglione

John D. Castiglione

This article adapts for reprint "Human Dignity Under the Fourth Amendment," originally published in the Wisconsin Law Review (2008).

Identity Theft: The Silent Thief, Dina Nesheiwat

Dina Nesheiwat

Identity theft it is a silent crime that has become an increasingly common occurrence for numerous individuals and families. Victims of identity theft experience countless days of frustration and helplessness in efforts to fix and repair their identity, yet it only takes a few steps to thwart this turmoil from the beginning. Sadly, there are still some families who ignore or do not know how to guard themselves from identity fraud. Some people are insensible that it can and may happen to them. Unfortunately, while pieces of their life, years of hard work and dignity can suddenly be stripped away …

Reevaluating California's Pitchess Process In Light Of The Police Officer Misconduct Problem, Jaime A. Lubbock

Jaime A. Lubbock

The California Supreme Court's decision in Pitchess v. Superior Court, allowing defendants access to police officer employment files under certain specific circumstances, was intended to strike a balance between a criminal defendant’s right to a fair trial and a legitimate interest in maintaining the confidentiality of police officer employment files. The statutory reaction to the Pitchess decision and subsequent court rulings have tipped this balance in favor of officer privacy, sacrificing not only the individual fair trial right, but foregoing a valuable tool in the exposure and deterrence of officer misconduct. The relevant statutes within California’s penal and evidence codes …

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Vera Bergelson

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s …

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Vera Bergelson

The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not. Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then …

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

Mark F. Grady

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

Prosecutors And Evidence-Based Sentencing: Rewards, Risks, And Responsibilities, Steven Chanenson

Steven L. Chanenson

No abstract provided.

Confusing Cause And Effect, Lawrence Rosenthal

Lawrence Rosenthal

This brief essay commenting on Paul Butler's article, "Race Based Jury Nullification: Black Power in the Criminal Justice System," prepared for the Criminal Law Conversations project, argues that Professor Butler's proposal of race-based jury nullification to address the African-American community's perception of racial injustice in the administration of the criminal laws, particularly the drug laws, confuses cause and effect. The most important cause of African-American dissatisfaction with the criminal justice system is its inability to keep inner-city communities safe. A regime of race-based jury nullification, in turn, would aggravate rather than ameliorate this serious problem.

The New Originalism Meets The Fourteenth Amendment: Original Public Meaning And The Problem Of Incorporation, Lawrence Rosenthal

Lawrence Rosenthal

This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation. In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of …

Revolution Or Evolution: Recent Developments In American Federal Criminal Sentencing, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.

Fair Process And Fair Play: Professionally Responsible Cross-Examination, John F. Nivala

John F. Nivala

No abstract provided.

Anti-Snitching Norms And Loyalty, Bret Asbury

Bret Asbury

In recent years a troubling trend has emerged within a number of poor, black communities. Termed “Stop Snitching,” it has manifested itself in the form community members’ refusing to cooperate with police investigations of community crimes. The result of this widespread refusal to cooperate has been a reduced number of crimes solved within these communities; without cooperating witnesses, it has proven exceedingly difficult for police to make criminal cases. Reactions to Stop Snitching have taken two predominant forms, both of which are mistaken. The first, most often attributed to law enforcement officers, is contempt. To them, community members who do …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …