Digital Commons Network^™

Refugee Security And The Organizational Logic Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

While the refugee protection system is one of international law’s most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), generally have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political …

Rethinking Overcriminalization, Darryl K. Brown

ExpressO

If there is one thing American criminal law scholars agree on, it is that our justice system suffers from overcriminalization. Our codes criminalize too much conduct; outdated offenses remain too long on the books, and legislatures cannot resist adding new crimes and harsher punishments. This is so because criminal law is a distinctive issue for legislative debate and for democratic politics generally. Few lobby against crime creation; legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but doesn’t contract. On this account, criminal …

The Legality Of Governmental Responses To Terrorism And The Dichotomous Characterization Of Terrorists As Criminals Or Enemy Combatants, Gregory E. Maggs

ExpressO

This article argues that the United States and other nations ought to create specialized laws to regulate governmental responses to terrorism, rather than debating whether the current laws of war or the current rules of law enforcement should apply. These specialized laws would see terrorism as a problem that sometimes lies between traditional crime and traditional warfare, and would establish rules designed to address governmental responses to it.

Is Capital Punishment Immoral Even If It Does Deter Murder?, Thomas Kleven

ExpressO

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Misplaced Angst---Another Look At Consent-Search Jurisprudence, Daniel R. Williams

ExpressO

Conventional scholarship misunderstands the judicial invocation of voluntariness when evaluating a purported consensual search. The key is to nail down more precisely what we mean by the term, consent. Most commentators mistakenly entwine consent and waiver, wrongly treating the act of consenting (to a search, to questioning, etc.) as an instance where the actor is waiving a constitutional right. That conceptual error promotes the view that consent refers to a subjective condition, a psychological state, which, in turn, spurs the expectation that voluntariness refers to a person's inner experience. On this view of consent, the person's inner experience is what …

Dangerousness And Expertise Redux, Christopher Slobogin

ExpressO

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically-derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about expert …

Necessity, Torture And Existential Politics, Christopher Kutz

ExpressO

This paper takes up the political theory sketched by the Office of Legal Counsel memorandum of August 1, 2002. That memorandum proposed a theory of executive emergency powers, including the power to use torturous interrogation techniques otherwise barred by domestic and international law. According to the memorandum, both the power to deploy torture and other forms of coercive interrogation, and the general freedom of the executive to direct policy in times of war, are grounded in a justification of necessity. The central aim of my paper is to explore the force and limits of necessity claims in moral and political …

The Suffocation Of Free Speech Under The Gravity Of Danger Of Terrorism, Tim Davis

ExpressO

On July 14, 2005, Ali al-Timimi was sentenced to life in prison plus 70 years for acts of pure speech. The United States government contended that Timimi, through his lectures and direct personal appeals, induced and/or aided and abetted local Muslim men to leave the country and pursue jihad training with the intent to defend the Taliban against all potential enemies, including the United States. Buried in nearly 200 pages of jury instructions was a single paragraph that unceremoniously described the law of protected speech under Brandenburg v. Ohio. At first blush, Brandenburg seemed to unequivocally lay down the rule …

Gender Equality, Social Values And Provocation Law In The United States, Canada And Australia, Caroline A. Forell

ExpressO

In this article I examine and compare the partial defense of provocation as it applies to domestic homicide in Australia, Canada, and the United States on both the gendered-male basis of jealous rage and gendered-female basis of fear. I explain why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada and the United States and why Australia is the leader in incorporating substantive equality into its provocation doctrine. I conclude that the main reason why some Australian jurisdictions have abolished provocation and others have female-friendly versions of the doctrine is that, unlike Canada …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury …

Is Capital Punishment Immoral Even If It Does Deter Murder?, Thomas Kleven

ExpressO

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Towards Attenuation: A 'New' Due Process Limit On Pinkerton Conspiracy Liability, Mark L. Noferi

Mark L Noferi

Since 1946, Pinkerton v. United States has purportedly settled the rule that a conspirator can be held vicariously liable for the crimes of his co-conspirators. Over the last thirty years, however, courts have begun to articulate and enforce Due Process limits on vicarious conspiracy liability where defendants are "attenuated" from their co-conspirator's crimes. This article represents the first academic examination of constitutional Due Process limits on Pinkerton conspiracy liability, their theoretical underpinnings, and the implications as the federal government pursues terrorism and corporate conspiracy prosecutions.

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

Reflections On Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most fertile and widespread …

"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict.

This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

Evidence History, The New Trace Evidence, And Rumblings In The Future Of Proof, Robert P. Mosteller

Faculty Publications

No abstract provided.

Fixing A Hole: How The Criminal Law Can Bolster Reparations Theory, Eric L. Muller

Faculty Publications

High-profile popular-press authors recently have challenged the mainstream consensus that certain historical events should be condemned as injustices. These authors argue that such condemnation unfairly imposes modern standards on historical actors. Until now, the redress movement has largely ignored these partisan revisionists who have sought to justify the harmful decisions made by past generations. Such revisionism, however, threatens the very foundation of reparations theory by persuading the public that redress is unnecessary because historical figures actually committed no injustice by merely acting appropriately, given the historical context in which they lived. This Article seeks to initiate a dialogue regarding how …

Detector Dogs And Probable Cause, Richard E. Myers Ii

Faculty Publications

No abstract provided.

Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller

Faculty Publications

No abstract provided.

Drugs, Dogs And The Fourth Amendment: An Analysis Of Justice Stevens' Opinion In Illinois V. Caballes, James Johnston

James B Johnston

When a drug dealer delivers illegal narcotics to the American maret place, he frequently uses out nation's roads. In an opinion authored by Justice John Paul Stevens, the U.S. Supreme Court that is captioned Illinois v. Caballes, the Court ruloed that drug dealers do not have a reasonable expectation of privacy when delivering illegal drugs in their cars. This article agrees with the Court's ruling and argues that we as a society have a right and an obligatio n to protect ourselves from drug abuse and drug traffickers. Justice Stevens' opinionj provides a brilliant examination of judicial precedent coupled with …

An Examination Of New Jersey's Money Laundering Statutes, James B. Johnston

James B Johnston

Drug dealers, white collar criminals and organized crime groups look at New Jersey as a safe haven when conducting financial transactions with their crime linked money. Due to its proximity to New York, New Jersey has become susceptible to the money laundering industry. As a result the New Jersey legislature has passed a series of anti-money laundering provisions that provide law enforcement with powerful tools designed to take the profit out of crime and bring money launderers to justice. This article examines New Jersey's money laundering statutes and its potential contribution in bringing profit motivated criminals to justice.

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Robert C Power

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian Gallini

Brian Gallini

Gender Equality, Social Values And Provocation Law In Australia, Canada And The United States, Caroline A. Forell

Caroline A Forell

This article examines and compares the partial defense of provocation as it applies to domestic homicide in the United States, Canada and Australia.