Digital Commons Network^™

Babe In The Woods: Why The Federal Rules Of Evidence Should Adopt A New Hearsay Exception To Protect Children, Marlee Rowe

Arkansas Law Notes

Child abuse is a public health problem affecting millions of children across the United States. Many states have adopted hearsay exceptions to prevent child victims of abuse from being forced to testify in front of their abusers. However, not all states provide these protections, and the exceptions vary widely from state to state. Because many states draft their rules of evidence to accord with the Federal Rules of Evidence, Congress should enact a hearsay exception on the federal level to promote uniformity and to ensure child victims of abuse are protected from further traumatization, regardless of what state they live …

Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow

Michigan Law Review

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …

The Elusive Object Of Punishment, Gabriel S. Mendlow

Articles

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; …

Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow

Articles

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. …

Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron

University of Michigan Journal of Law Reform

When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?

Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …

Stock Market Manipulation And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel Rauterberg

Articles

More than eighty years after federal law first addressed stock market manipulation, the federal courts remain fractured by disagreement and confusion concerning manipulation law's most foundational issues. There remains, for example, a sharp split among the federal circuits concerning manipulation law's central question: Whether trading activity alone can ever be considered illegal manipulation under federal law? Academics have been similarly confused-economists and legal scholars cannot agree on whether manipulation is even possible in principle, let alone on how to properly address it in practice.

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Michigan Law Review

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

Excuses In Exile, Anders Kaye

University of Michigan Journal of Law Reform

Suppose that I have intentionally killed another person and that I have done so without any justification. At first glance, it appears that I am guilty of murder, a very serious crime. Since I am guilty of this very serious crime, the state may inflict a very serious punishment on me—at least many years in prison, if not my whole life or the death penalty. But suppose that one of the following is also true in my case: (A) At the time that I killed my victim, I suffered from a mental disease and, as a result, lacked the substantial …

Human Rights Obligations To The Poor, Monica Hakimi

Book Chapters

Poverty unquestionably detracts from the human rights mission. Modern human rights law recognizes a broad range of rights - for example, "to life, liberty, and security of person" and to adequate "food, clothing, and medical care."1 Any number of those rights might go unrealized in conditions of extreme poverty. However, human rights law has always been partly aspirational. For those seeking to improve the lives of the poor, the key question is not what rights exist but how to make those rights operational. What does human rights law actually require of states? And how might its obligations benefit the poor?

Interpersonal Power In The Criminal System, Kimberly A. Thomas

Articles

This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken. This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind the …

Hot Crimes: A Study In Excess, Steven P. Grossman

All Faculty Scholarship

Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even …

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

University of Michigan Journal of Law Reform

It is a common misconception that there is a line between criminal and innocent conduct that is transparent and fixed. In fact, much of criminal law is fluid and elastic, free, if strategically applied, to label conduct as legal or illegal. In some cases, this reflects crimes that are vaguely defined or imprecise. In other cases, the prohibited conduct simply includes what is so conventionally accepted as legal that the criminal label is perceived as inapplicable until a prosecutor chooses to apply it. The problem of a fluid rather than a fixed line for criminality is that prosecutorial discretion becomes …

State Bystander Responsibility, Monica Hakimi

Articles

International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework …

Truth And Innocence Procedures To Free Innocent Persons: Beyond The Adversarial System, Tim Bakken

University of Michigan Journal of Law Reform

Through innocent pleas and innocence procedures, this Article urges a fundamental change to the adversarial system to minimize the risk that factually innocent persons will be convicted of crimes. The current system, based on determining whether the prosecution can prove guilt beyond a reasonable doubt, results in acquittals of guilty persons when evidence is sparse and convictions of innocent persons when evidence is abundant. It might be easier philosophically to accept that guilty persons will go free than to know that some innocent persons will be convicted and imprisoned, especially in the American justice system where erroneous jury verdicts based …