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Open Markets, Competitive Democracy, And Transparent And Reliable Legal Systems: The Three Legs Of Development, James R. Jones

Chicago-Kent Law Review

In the 1990s, reform swept through Latin America. Open markets replaced closed economies. Real democracy replaced one-party rule and rigged elections. For about half of the region's population, economic and political conditions improved—yet the gap between the rich and poor widened. The poor half received little or no tangible benefits from these economic and democratic reforms. This article argues that the most difficult and probably most important reform remains to be accomplished: the reform of the legal and regulatory systems throughout Latin America. Until that happens, dreams of first-world recognition and respectability will elude Latin nations.

Why Judy Norman Acted In Reasonable Self-Defense: An Abused Woman And A Sleeping Man, Marina Angel

Marina Angel

The reasonable man has been replaced by the reasonable person, but that person still functions within legal doctrines conceived by men and interpreted to fit the facts of men's lives. To understand why it is sometimes reasonable for an abused woman to kill her abuser while he is asleep or otherwise incapacitated, basic criminal law doctrines do not have to be changed. They do, however, have to be applied to the facts of abused women's lives.

The issue of exit – why didn’t she leave – must be explained. Concepts of time – immediate, imminent, and cyclical – must be …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Fitness For Trial In The District Court: The Legal Perspective, Darius Whelan

Darius Whelan

The Scarlet Letter Effect: The Adulterous Defendant On Trial For Spousal Murder, Elizabeth H. Matherne

Elizabeth H Matherne

“At the vary least, they should have put the brand of hot iron on Hester Prynne’s forehead.”

Hester Prynne and The Scarlet Letter conjure images of an outcast infinitely branded and burdened by infidelity. As the story model becomes increasingly accepted as the most accurate theory of the juror decision making process, some attorneys are carefully crafting their message to fit such iconic images. Others are being left behind with dire consequences to their clients. In my article, I highlight how one segment of criminal defendants, the Adulterous Defendant on Trial for Spousal Murder, is especially vulnerable to the abuse …

Forensic Dna Phenotyping: Regulatory Issues, Bert-Jaap Koops, Maurice Schellekens

Bert-Jaap Koops

Forensic DNA phenotyping is an interesting new investigation method: crime-scene DNA is analyzed to compose a description of the unknown suspect, including external and behavioral features, geographic origin and perhaps surname. This method is allowed in some countries but prohibited in a few others. Most countries have not yet taken a stance on this. This article addresses the question to what extent this investigation method should be allowed. The relevant regulatory issues are analyzed: the right of people not to know what their DNA tells about propensities for diseases or other propensities, data protection and privacy, stigmatization and discrimination, and …

At His Discretion (N.): "To Be Disposed Of As He Thinks Fit; At His Disposal, At His Mercy; Unconditionally", J. Amy Dillard

All Faculty Scholarship

Review of ANGELA J. DAVIS, ARBITRARY JUSTICE (Oxford University Press, Inc. 2007) 264 pp.

'The Moral Limits Of Criminalizing Remote Harms,' 10(3) New Criminal Law Review 370, Dr. Dennis J. Baker

Dr. Dennis J Baker

I draw on accessorial liability jurisprudence in an attempt to outline the moral limits of criminalizing people for merely influencing the criminal choices of others. A person's conduct is a remote harm when it is harmless but for the fact that it encourages another independent party to commit a harmful criminal act (a primary harm). For example, the broken windows thesis holds that minor incivilities (such as passive begging) are a precursor to more serious crime. Passive begging allegedly sends a signal to criminals that the broken windows area is unpoliced and is an easy target for crime. The beggars …

Studying The Death Penalty In Tennessee, Dwight Aarons

Scholarly Works

No abstract provided.

Can Prosecutors Bluff? Brady V. Maryland And Plea Bargaining, John G. Douglass

Law Faculty Publications

The author discusses the symbolic value of the Brady rule in the pretrial context in the U.S. criminal justice system. Brady's symbolic power remains stronger than its corrective power in post-trial motions. It serves as a constitutional reminder to prosecutors because they cannot serve as architects of unfairness. Most prosecutors disclose more Brady material in pretrial discovery than the constitutional rule actually demands. This indicates that prosecutors can bluff.

American Buffalo: Vanishing Acquittals And The Gradual Extinction Of The Federal Criminal Trial Lawyer, Frank O. Bowman Iii

Faculty Publications

This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory …

Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations, Sonja Starr

Faculty Scholarship

No abstract provided.

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Fordham Law Review

No abstract provided.

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate

Faculty Journal Articles and Book Chapters

This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against …

Criminal Law—The Meaning Of Violence: An Interpretive Analysis On Whether A Prior Conviction For Carrying A Concealed Weapon Is A "Crime Of Violence" Under The United States Sentencing Guidelines, Neal Eriksen

Western New England Law Review

No abstract provided.

"Prisoner Never Gave Me Anything For What He Done:" Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan

Articles & Book Chapters

Aboriginal people participated in different ways in the criminal process in the earl years of the North- West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their participation was often mediated by the police, Indian agents and sometimes their Chiefs. Their word were also mediated by interpreters, both linguistic and cultural and their signatures were invariably marked as "X" on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the …

Criminal Performances: Film, Autobiography, And Confession, Jessica Silbey

Faculty Scholarship

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …

Federal Drug Sentencing—What Was Congress Smoking? The Uncertain Distinction Between "Cocaine" And "Cocaine Base" In The Anti-Drug Abuse Act Of 1986, Spencer A. Stone

Western New England Law Review

No abstract provided.

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib

Faculty Scholarship

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

Common Law Police Powers And The Rule Of Law, Steve Coughlan

Articles, Book Chapters, & Popular Press

Common law police powers have long been a source of some dispute in the Canadian criminal justice system. On the one hand, their existence is difficult to reconcile with predictability in the law, since in any individual case where a new power is created (generally referred to as use of the "ancillary powers doctrine"), it would not have been possible to know in advance that the police were actually acting legally. On the other hand the benefit for society purchased with that ambiguity is a more tailored response to the particular problem, which might also lead to better results in …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

The Origins Of Shared Intuitions Of Justice, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law School Faculty Publications

Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result?

The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, …

Magistrates’ Examinations, Police Interrogations, And Miranda—Like Warnings In The Nineteenth Century, Wesley M. Oliver

Wesley M Oliver

The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper …

Pinochet And The Uncertain Globalization Of Criminal Law, Robert C. Power

Robert C Power