Law Commons^™

The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch

Faculty Scholarship

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear "appeals" from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence – that the …

Waiting For The Verdict On Spain's New Jury System, Stephen C. Thaman

All Faculty Scholarship

This article discusses Spain’s history of trial by jury, focusing on the reinstatement of trial by jury in Spain by the 1995 jury legislation implementing Article 125 of the post-Franco Spanish Constitution. It discusses key provisions of the new Spanish jury law with illustrations from the cases of Otegi and others. It also predicts as to whether the classic jury will acquit itself as a catalyst for criminal justice reform in a Civil Law system such as that of Spain.

The Jury As Catalyst For The Reform Of Criminal Evidentiary Procedure In Continental Europe: The Cases Of Russia And Spain, Stephen C. Thaman

All Faculty Scholarship

This paper focuses on the dialectic between the search for truth, adversarial procedure, and lay participation in the preparation, presentation, and evaluation of evidence in criminal trials. Its primary focus is on the reintroduction of trial by jury in two classic inquisitorial criminal justice systems, Russia (1993) and Spain (1995), as a catalyst in those countries’ move to adversary procedure. It focuses on the effect of the jury system on preparing evidence for trial, the presentation of evidence at trial, and the evaluation of evidence.

Old Chief V. United States: Stipulating Away Prosecutorial Accountability?, Daniel Richman

Faculty Scholarship

Earlier this year, in Old Chief v. United States, the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony?

The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion …

Does Public Choice Theory Justify Judicial Activism After All?, Thomas W. Merrill

Faculty Scholarship

Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism. Others have said it does not. Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all.

Ethics, Professionalism, And Meaningful Work, William H. Simon

Faculty Scholarship

Much of the anxiety and dissatisfaction associated with legal ethics arises from the categorical quality of the bar's dominant norms. These norms take the form of relatively inflexible rules insensitive to all but a few of the circumstances of the cases they govern. Hence they often require the lawyer to take actions that contribute to injustice or to refrain from actions that would avert injustice.

For example, many lawyers believe that a criminal defender is obliged to impeach a truthful complaining witness even though the only immediate purpose of this tactic is to encourage the trier to draw a mistaken …

Deterrence’S Difficulty, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics's Coase Theorem and constitutional law's Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good …