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Full-Text Articles in Law

Brock Turner: Sorting Through The Noise, Michael Vitiello Jan 2108

Brock Turner: Sorting Through The Noise, Michael Vitiello

McGeorge School of Law Scholarly Articles

PART I. THE MEDIA’S ROLE ............................................................................... 634

A. Six Months for Rape? ............................................................................ 634

B. Okay, But Sixth Months for Sexual Assault? ......................................... 638

C. But Vitiello, You are Cherry-Picking the Facts ..................................... 643

D. But Judge Persky Showed Bias, Racial or Otherwise ........................... 646

PART II: TAKING THE WRONG PATH TOWARDS RECALL ................................... 649

A. Existing Checks on Judicial Misconduct ............................................... 650

B. What’s Not to Like About Recall? ......................................................... 652

III. CONCLUDING THOUGHTS ............................................................................. 659


A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock Oct 2018

A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock

Emily Ryo

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.


The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns Sep 2018

The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns

Pepperdine Law Review

The Armed Career Criminal Act and United States Sentencing Guidelines prescribe sentence enhancements based upon a defendant’s prior convictions. In particular, these federal sentencing tools contain violent felony provisions that outline the requirements a state criminal statute must satisfy for a conviction to constitute a violent felony, making the convicted person eligible for a federal sentence enhancement. However, the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S. Ct. 2551 (2015) severely limited the scope of both sentencing tools’ violent felony provisions, making it more difficult for ...


Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney Sep 2018

Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney

Pepperdine Law Review

In 2018, many believe that slavery is an antiquated concept. But as with anything else, if it has not become extinct, it has evolved with time. Human trafficking is no different. Each year, millions of men, women and children are trafficked in the United States, and internationally, and forced to work against their will. Through the rise of technology and an increasingly globalized world, traffickers have learned to use technology as a tool to help facilitate the trafficking of persons and to sell those victims to others they never could have reached before. But what are we doing about it ...


The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad Sep 2018

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with ...


Preventing Drug-Related Deaths At Music Festivals: Why The "Rave" Act Should Be Amended To Provide An Exception For Harm Reduction Services, Robin Mohr Sep 2018

Preventing Drug-Related Deaths At Music Festivals: Why The "Rave" Act Should Be Amended To Provide An Exception For Harm Reduction Services, Robin Mohr

Chicago-Kent Law Review

No abstract provided.


Poor Wesley Hohfeld, Peter Westen Sep 2018

Poor Wesley Hohfeld, Peter Westen

San Diego Law Review

John Wesley Hohfeld has lost one audience and gained another in the century since he published his seminal Fundamental Legal Conceptions in 1919. Hohfeld originally conceived of his work as an aide to lawyers and law students. And law faculties initially embraced him enthusiastically. Over time, however, law faculties have lost interest in Hohfeld, and moral philosophers have taken their place, such that it is difficult to read widely nowadays in moral theory regarding war and self defense without coming across supportive references to Hohfeld. Unfortunately moral theorists too often invoke Hohfeld for propositions that he explicitly disavowed. Using Uwe ...


Self-Defense And Culpability: Fault Forfeits First, Richard J. Arneson Sep 2018

Self-Defense And Culpability: Fault Forfeits First, Richard J. Arneson

San Diego Law Review

Under what conditions is it morally permissible to kill someone in order to save your own life—or the life of another who is threatened? There seem to be clear cases. Threatened by an assailant who is trying to kill you for no good reason, you may use lethal force if necessary to save yourself from death or serious injury from the assailant’s attack. Threatened with death in the form of an onrushing runaway truck, you may not save yourself by using a bystander or imposing on a bystander in a way that inflicts severe harm on her. In ...


The Need To Attend To Probabilities—For Purposes Of Self-Defense And Other Preemptive Actions, Larry Alexander Sep 2018

The Need To Attend To Probabilities—For Purposes Of Self-Defense And Other Preemptive Actions, Larry Alexander

San Diego Law Review

I was not certain I was going to write something for this symposium. After all, I had written a lot on the topic of self-defense, so what was there left to say that I had not said before? I have concluded, however, after reading a new generation of literature on self-defense, that most who write on the topic neglect its perhaps most important aspect, namely, that it is a preemptive action. As a preemptive action, self-defense perforce takes place before the attack to which it is a response occurs. This preemptive aspect of self-defense brings with it a nest of ...


Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan Sep 2018

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

San Diego Law Review

Assume Culpable Aggressor threatens Innocent Victim with a knife. Victim is stronger than Culpable Aggressor and is able to defend herself by punching Culpable Aggressor in the face, causing him to stumble back and drop the knife. Not only was this action necessary, but also Victim believed it to be so to save her life.

I take it that this is an uncontroversial case of self-defense. My question is whether this is also a case of punishment. Uwe Steinhoff suggests that it might be. Indeed, he states that “nothing hinders an act from being both punitive and defensive. In fact ...


The Vindication Of Good Over Evil: “Futile” Self-Defense, Douglas Husak Sep 2018

The Vindication Of Good Over Evil: “Futile” Self-Defense, Douglas Husak

San Diego Law Review

The burgeoning self-defense literature, like that in most areas of moral and legal philosophy, typically begins with and seeks to rationalize our intuitions. I submit that the intuitive judgment of virtually all respondents, at least initially, is that IV is permitted to exercise her right of self-defense, however futile, and scratch WA. This intuition, I believe, is incredibly powerful and robust; I certainly have it myself. Yet quite a few philosophers and legal theorists contend IV is not permitted to employ futile self-defense against WA. Presumably, they believe IV must passively accept her fate without injuring WA. Why hold this ...


Steinhoff And Self-Defense, Michael S. Moore Sep 2018

Steinhoff And Self-Defense, Michael S. Moore

San Diego Law Review

I shall first describe what moral combat would be if it existed, separate it into distinct species, and say why it is so undesirable that one should be brought to acknowledge its existence only reluctantly and as a last resort. I will then detail two ways in which rights to do things—often called “action rights” or “active rights”—such as the right to defend oneself, are integrated into standard deontic logic: (1) Hohfeld’s way and (2) the older but still popular Kantian alternative that Hurd and I recently defended. The first of these is compatible with—indeed, inviting ...


The Nature Of Self-Defense, Samuel C. Rickless Sep 2018

The Nature Of Self-Defense, Samuel C. Rickless

San Diego Law Review

What is self-defense? Most theorists of self-defense are mainly interested in explaining why and when we are morally justified in defending ourselves from a threat posed by another. The moral questions here are important, not just because self-defense represents an interesting moral conundrum, but because morality, at least in this case, is, or should be, a reliable guide to the law. So theorists of self-defense often start with paradigm cases—the culpable aggressor, the justified aggressor, the innocent aggressor, the innocent threat, and so on—and try to explain moral intuitions about them with the help of moral theory, whether ...


Self-Defense, Necessity, And The Duty To Compensate, In Law And Morality, Kenneth W. Simons Sep 2018

Self-Defense, Necessity, And The Duty To Compensate, In Law And Morality, Kenneth W. Simons

San Diego Law Review

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? Professor Uwe Steinhoff’s manuscript offers a distinctive and wide-ranging perspective on the controversial questions these privileges raise. This essay engages with a number of his arguments, particularly focusing on legal and moral duties of compensation.

First, this essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers ...


The Right To Cause Harm As An Alternative To Being Sacrificed For Others: An Exploration Of Agent-Rights With A Special Focus On Intervening Agency, Alec Walen Sep 2018

The Right To Cause Harm As An Alternative To Being Sacrificed For Others: An Exploration Of Agent-Rights With A Special Focus On Intervening Agency, Alec Walen

San Diego Law Review

My strategy for defending the right of non-sacrifice and the connected agent–patient inference is to move through a series of cases, starting with easy cases—clearly permissible acts of non-sacrifice—and moving to more controversial ones. The controversial cases are those in which intervening agency is central to explaining why an agent should have the right of non-sacrifice. My argument will not simply be an attempt to explain intuitions. I take the intuitions on the easy cases to be reliable, but once we move to controversial cases, I think moral intuitions become unreliable. My argument fundamentally trades on two ...


Unwitting Justification, Peter Westen Sep 2018

Unwitting Justification, Peter Westen

San Diego Law Review

An assailant is on the verge of shooting a hated rival, Jones, when Jones, oblivious to the attack, decides in that instant to kill his assailant, thereby becoming what commentators call an “unknowing self-defender” or “unwittingly justified actor.” By its terms, Jones is guilty of an impossibility attempt under the Model Penal Code because he satisfies all the elements of attempted murder under the Code. The question, which has divided commentators since George Fletcher and Paul Robinson’s debate in the 1970s, is whether Jones is also guilty of the completed crime of murder and whether the latter is the ...


Replies, Uwe Steinhoff Sep 2018

Replies, Uwe Steinhoff

San Diego Law Review

Many philosophers who write on self-defense tend to ignore the self-defense discussions offered by legal scholars, and accordingly they often ignore the law or pay insufficient attention to it. In my experience, this attitude stems from a misperception of legal scholarship as some kind of positivistic interpretation of legal documents and as positive law being irrelevant for deciding what the morally right answer to the issues raised by self-defense are. I find this attitude deplorable because legal scholarship, especially in the field of criminal law, is more often than not straightforward moral philosophy; and criminal law especially gives expression to ...


Ibarra Vs. State, 134 Nev. Adv. Op. 70 (Sept. 13, 2018) (En Banc), Whitney Jones Sep 2018

Ibarra Vs. State, 134 Nev. Adv. Op. 70 (Sept. 13, 2018) (En Banc), Whitney Jones

Nevada Supreme Court Summaries

The Court determined a defendant can be convicted of larceny from the person when a defendant fraudulently persuades a person to temporarily hand over their property, when in fact the defendant intends to permanently take the person’s property without the person’s consent for purposes of NRS 205.270(1).


“Collusion” And The Criminal Law, Robert M. Sanger Sep 2018

“Collusion” And The Criminal Law, Robert M. Sanger

Robert M. Sanger

The journalistic use of the term “collusion” in the air; it might be a good time for a refresher. This article will make an effort to cover the general framework of federal crimes in which a potential target (i.e., a would be defendant if a case were filed) had a guilty mind but did not directly do the ultimate act. Looked upon from the “collusion” perspective, it is a situation where a person did something with others in which some illegal result was attempted or accomplished by some or all of the participants. Broadly construed, inchoate crimes would include ...


Dunham (John) V. State, 134 Nev. Adv. Op. 68 (Sept. 6, 2018), Katrina Brandhagen Sep 2018

Dunham (John) V. State, 134 Nev. Adv. Op. 68 (Sept. 6, 2018), Katrina Brandhagen

Nevada Supreme Court Summaries

The Court determined that the word “resides” in NRS 205.067(5)(b) does not require that the owner of a dwelling live permanently or continuously in the dwelling. The Court also held that the sentence of a maximum of 96 months in prison with parole eligibility after 38 months imposed on the appellant when a jury convicted him of home invasion, was not cruel and unusual punishment.


A General Mitigation For Crimes Driven By Emotion?: Physiological, Personal Choice, And Normative Inquiries, Paul H. Robinson Sep 2018

A General Mitigation For Crimes Driven By Emotion?: Physiological, Personal Choice, And Normative Inquiries, Paul H. Robinson

Faculty Scholarship

It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all emotions. The mitigation would be limited, however, to those instances in which the jury finds that a mitigation is deserved upon taking account of the extent of the internal pressure to commit the offense (the physiological inquiry), the extent of the offender’s efforts to resist that pressure (the personal choice inquiry), and the effect of giving such a mitigation on community ...


Neurohype And The Law: A Cautionary Tale, Stephen J. Morse Sep 2018

Neurohype And The Law: A Cautionary Tale, Stephen J. Morse

Faculty Scholarship

This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.


Sex Offender Civil Commitment To Prison Post-Kingsley, Arielle W. Tolman Sep 2018

Sex Offender Civil Commitment To Prison Post-Kingsley, Arielle W. Tolman

Northwestern University Law Review

Today, an estimated 5400 people are civilly committed under state and federal sex offender programs. This Note surveys these civil commitment regimes and finds that seventeen jurisdictions (sixteen states and the federal government) have enacted legislative schemes that authorize the indefinite civil detention of people charged with, or previously convicted of, sex offenses to prisons or prison-like facilities—often for their entire lives. By charting the pervasiveness of sex offender civil commitment to prison, this Note provides new evidence that these sex offender civil commitment statutes are, in fact, punitive and, therefore, unconstitutional. Moreover, this Note argues that the Supreme ...


Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell Sep 2018

Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell

Utah Law Faculty Scholarship

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in ...


Tradeoffs Between Wrongful Convictions And Wrongful Acquittals: Understanding And Avoiding The Risks, Paul Cassell Sep 2018

Tradeoffs Between Wrongful Convictions And Wrongful Acquittals: Understanding And Avoiding The Risks, Paul Cassell

Utah Law Faculty Scholarship

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn ...


Bucklew V. Precythe : Brief Of Arizona Voice For Crime Victims, Inc., And Melissa Sanders As Amici Curiae In Support Of Respondents, Paul Cassell, Allyson N. Ho, Daniel Nowicki, Daniel Chen Sep 2018

Bucklew V. Precythe : Brief Of Arizona Voice For Crime Victims, Inc., And Melissa Sanders As Amici Curiae In Support Of Respondents, Paul Cassell, Allyson N. Ho, Daniel Nowicki, Daniel Chen

Utah Law Faculty Scholarship

This amicus brief in Bucklew v. Precythe discusses how undue delay in capital cases can harm crime victims’ families. After reviewing the facts of the cases, the brief draws on the available scholarship to show how extended delays in criminal cases – and particularly death penalty cases – can compound the harms and exacerbate the trauma that victims’ families suffer. The brief concludes that the important interests of victims should be vindicated by affirming the judgment reached below.


Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith Sep 2018

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the ...


Nova Law Review Sep 2018

Nova Law Review

Nova Law Review

No abstract provided.


How To End “Illegal Immigration”, Kari E. Hong Sep 2018

How To End “Illegal Immigration”, Kari E. Hong

Boston College Law School Faculty Papers

Since President Trump has taken office, it is clearer than ever that there are two ways to end “illegal immigration.” The first route — started by President Obama and ratcheted up by President Trump with relentless cruelty — is an actual effort to deport millions and exclude millions more. The second is to legalize those without status who have been, are, and will continue to contribute to America’s families, communities, and future.

This essay argues that the latter choice, restoring the paths to legalization that once were part of our nation’s laws, is the only realistic way forward to restore ...


Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart Sep 2018

Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart

ILSA Journal of International & Comparative Law

No abstract provided.