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Articles 1 - 25 of 25
Full-Text Articles in Entire DC Network
Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall
Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall
Amy J. Sepinwall
The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil rig explosion or the Wall Street banks involved in the financial meltdown.
This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the …
Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering - October 2009 Term, Richard Klein
Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering - October 2009 Term, Richard Klein
Touro Law Review
No abstract provided.
Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik
Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik
Amanda C Pustilnik
Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances? This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …
Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik
Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik
Amanda C Pustilnik
Can constructs of social meaning lead to actual criminal confinement? Can the intangible value ascribed to the maintenance of certain social norms lead to radically inefficient choices about resource allocation? The disproportionate criminal confinement of people with severe mental illnesses relative to non-mentally ill individuals suggests that social meanings related to mental illness can create legal and physical walls around this disfavored group. Responding to the non-violent mentally ill principally through the criminal system imposes at least 6 billion dollars in costs annually on the public, above any offsetting public safety and deterrence benefits, and imposes terrible human costs on …
Understanding The Dennis Ferguson Debate: Part 2, Jodie O'Leary
Understanding The Dennis Ferguson Debate: Part 2, Jodie O'Leary
Jodie O'Leary
Extract: Recently I received a cause invitation from an old school friend on Facebook. The cause was to support micro-chipping of all paedophiles. I rejected that invitation. All I could think of was the microchip embedded in my Labrador. The way I understand that chip to work is that if someone finds my dog wandering the streets they can take him to a vet or the RSPCA who will then scan the chip and return him to me. The obvious question seemed to be: how would such a measure help protect children? After all, protection of children is the goal …
Twelve Angry Peers Or One Angry Judge: An Analysis Of Judge Alone Trials In Australia, Jodie O'Leary
Twelve Angry Peers Or One Angry Judge: An Analysis Of Judge Alone Trials In Australia, Jodie O'Leary
Jodie O'Leary
Recently, New South Wales amended its legislation to provide for judicial discretion when determining, upon request, whether an accused will face a trial by judge alone for indictable criminal matters. This article examines the application of those provisions and comparable legislation in Queensland and Western Australia, revealing an overarching tension as to the correct legal approach. Broadly, there is a dispute over the weight that should be afforded to the accused’s right to choose or whether a presumption of a jury trial exists. Such a conflict arises from the different justifications for jury trials. On the one hand the jury …
A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo
A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo
Bethel G.A Erastus-Obilo
The concept of a perverse verdict is one that pervades the Criminal justice system of nearly all common law jurisdictions. The English Criminal Justice system is no exception and the concept has become institutionalised as if it were a true occurrence. This paper challenges the idea and argues that it is, technically, a legal non-event given the system of trial by jury. The theory is that besides the jury, no one else is invested with the power and authority to declare a verdict and this position is supported both by legal custom and the mechanism of the criminal justice system. …
Bargaining With Double Jeopardy, Saul Levmore, Ariel Porat
Bargaining With Double Jeopardy, Saul Levmore, Ariel Porat
Ariel Porat
Virtually every burden of proof is influenced by a rule regarding relitigation. In criminal law, the prosecutor is prevented from repeatedly drawing from the urn, as it were, by the double jeopardy rule, which reinforces the beyond-a-reasonable-doubt standard. We suggest that if law were to permit the defendant to waive the double jeopardy protection, private and social benefits might follow. The benefits derive from the likelihood that the prosecutor – like most people who can take a test but once – will overinvest in preparation. Somewhat similarly, though far afield, deficit spending by a legislature might be linked to the …
The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn
The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn
Geoffrey S. Corn
Abstract
The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You
Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attacks. While the “stormy seas” the decision navigated produced a wake of academic study of the wisdom of the decision, little attention has been focused on an equally logical question: did Miranda go far enough? If, as the Miranda Court emphasized, the purpose of Miranda’s warnings was …
Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray
Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray
David C. Gray
How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …
Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber
Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber
David C. Gray
In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …
Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez
Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez
Faculty Articles and Other Publications
Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.
Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …
Imprisoning Rationalities, Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz, Alex Steel
Imprisoning Rationalities, Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz, Alex Steel
Alex Steel
Imprisonment is a growth industry in Australia. Over the past 30-40 years all state and territory jurisdictions have registered massive rises in both the absolute numbers of those imprisoned and the per capita use of imprisonment as a tool of punishment and control. Yet over this period there has been surprisingly little criminological attention to the national picture of imprisonment in Australia and to understanding jurisdictional variation, change and continuity in broader theoretical terms. This article reports initial findings from the Australian Prisons Project, a multi-investigator Australian Research Council funded project intended to trace penal developments in Australia since about …
Defending Against The Defenders Why I Can Be A Good Prosecutor And A Good Person, Sarah Montana Hart
Defending Against The Defenders Why I Can Be A Good Prosecutor And A Good Person, Sarah Montana Hart
Sarah Montana Hart
This article discusses the choice to become a prosecutor, specifically in light of the critics of the profession from writers like Paul Butler and Abbe Smith.
The Need For Special Veterans Courts, Samantha Walls
The Need For Special Veterans Courts, Samantha Walls
Denver Journal of International Law & Policy
No abstract provided.
The Future Of Human Rights In The Age Of Globalization, M. Cherif Bassiouni
The Future Of Human Rights In The Age Of Globalization, M. Cherif Bassiouni
Denver Journal of International Law & Policy
No abstract provided.
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Articles & Chapters
This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …
The Politics Of International Justice - U.S. Policy And The Legitimacy Of The Special Tribunal For Lebanon, John Cerone
The Politics Of International Justice - U.S. Policy And The Legitimacy Of The Special Tribunal For Lebanon, John Cerone
Denver Journal of International Law & Policy
No abstract provided.
Book Review Of Fact Finding Without Facts: The Uncertain Evidentiary Foundations Of International Criminal Convictions, Linda A. Malone
Book Review Of Fact Finding Without Facts: The Uncertain Evidentiary Foundations Of International Criminal Convictions, Linda A. Malone
Faculty Publications
No abstract provided.
How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, Stuart Ford
Saint Louis University Law Journal
No abstract provided.
New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan
New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan
Law Faculty Scholarship
Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to …
The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan
The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan
Law Faculty Scholarship
Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …
I Got The Shotgun: Reflections On The Wire, Prosecutors, And Omar Little, Alafair Burke
I Got The Shotgun: Reflections On The Wire, Prosecutors, And Omar Little, Alafair Burke
Hofstra Law Faculty Scholarship
The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually "got the shaft."
To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is …
The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian Dervan
The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian Dervan
Lucian E Dervan
Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …
Self-Incrimination, Alex Stein
Self-Incrimination, Alex Stein
Alex Stein
This Chapter surveys the law & economics literature on self-incrimination and confessions.