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Articles 1 - 30 of 73
Full-Text Articles in Law
Surprise Symphony: The Supreme Court’S Major Criminal Law Rulings Of The 2002 Term, William E. Hellerstein
Surprise Symphony: The Supreme Court’S Major Criminal Law Rulings Of The 2002 Term, William E. Hellerstein
Touro Law Review
No abstract provided.
Appellate Division, Fourth Department, People V. Cortes, Jennifer Feldman
Appellate Division, Fourth Department, People V. Cortes, Jennifer Feldman
Touro Law Review
No abstract provided.
A Year To Remember: The Supreme Court's Fourth, Fifth, And Sixth Amendment Jurisprudence For The 2003 Term, William E. Hellerstein
A Year To Remember: The Supreme Court's Fourth, Fifth, And Sixth Amendment Jurisprudence For The 2003 Term, William E. Hellerstein
Touro Law Review
No abstract provided.
Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel
Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel
Michael L Seigel
This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is …
Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman
Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman
Michael L Seigel
This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …
The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford
The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford
John F. Stinneford
In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …
Punishment Without Culpability, John F. Stinneford
Punishment Without Culpability, John F. Stinneford
John F. Stinneford
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …
The Linchpin Of Identification Evidence: The Unreliability Of Eyewitnesses And The Need For Reform In West Virginia, Jared T. Dotson
The Linchpin Of Identification Evidence: The Unreliability Of Eyewitnesses And The Need For Reform In West Virginia, Jared T. Dotson
West Virginia Law Review
No abstract provided.
Shadow Trial: Prosecutors In Ferguson Violated Our Right To An Open Criminal Justice System, Sonja R. West, Dahlia Lithwick
Shadow Trial: Prosecutors In Ferguson Violated Our Right To An Open Criminal Justice System, Sonja R. West, Dahlia Lithwick
Popular Media
St. Louis County prosecutor Robert McCulloch’s decision to “open up” the grand jury proceedings by including massive amounts of testimony and evidence has been decried as “highly unusual,” “deeply unfair,” and evidence that police officer Darren Wilson received “special treatment.” McCulloch’s move to include a good deal of exculpatory evidence and testimony led to a three-month, closed-door proceeding that included 70 hours of testimony, including 60 witnesses and three medical examiners. The breadth of the evidence presented to the grand jury has led many to declare that it turned the entire proceeding into something that walks and quacks an awful …
Full Legal Representation For The Poor: The Clash Between Lawyer Values And Client Worthiness, Michelle S. Jacobs
Full Legal Representation For The Poor: The Clash Between Lawyer Values And Client Worthiness, Michelle S. Jacobs
Michelle S Jacobs
This article seeks to expand the scope of our understanding of values and their connection to the work of poverty lawyers. The article explores the literature on poverty and moral worthiness. In order to bring clarity to the discussion, it examines social science research on defining "values" and detailing how they can affect behavior. Prof. Jacobs describes the reactions of clinical students to a classroom exercise, which asked them to describe the legal representation they would provide to hypothetical clients. This article describes how the link between students' values and broader societal beliefs affect the practices of the bar and …
Piercing The Prison Uniform Of Invisibility For Black Female Inmates, Michelle S. Jacobs
Piercing The Prison Uniform Of Invisibility For Black Female Inmates, Michelle S. Jacobs
Michelle S Jacobs
In Inner Lives: Voices of African American Women In Prison, Professor Paula Johnson has written about the most invisible of incarcerated women — incarcerated African American women. The number of women incarcerated in the United States increased by seventy-five percent between 1986 and 1991. Of these women, a disproportionate number are black women. The percentages vary by region and by the nature of institution (county jail, state prison or federal facility), but the bottom line remains the same. In every instance, black women are incarcerated at rates disproportionate to their percentage in the general population. In Inner Lives, Professor Johnson …
Excuses, Justifications, And Duress At The International Criminal Tribunals, Noam Wiener
Excuses, Justifications, And Duress At The International Criminal Tribunals, Noam Wiener
Pace International Law Review
This article examines the application of the defense of duress by international criminal tribunals through analyzing opposing theoretical approaches to justifications and excuses. The purpose of this examination is twofold. First, the article offers a framework for duress’s application by examining scholarly approaches to duress and by analyzing the application of the defense by international tribunals. This analysis includes the tribunals constituted following the Second World War and International Criminal Tribunal for the Former Yugoslavia (ICTY). Second, the article provides insight into the underlying rationales that guide judges at the international tribunals in the last decade through the judges’ application …
People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale
People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale
Elizabeth Dale
The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for …
New Explorations In Culture And Crime: Definitions, Theory, Method, Kenneth B. Nunn
New Explorations In Culture And Crime: Definitions, Theory, Method, Kenneth B. Nunn
Kenneth B. Nunn
Culture affects criminal law in at least two key ways. First, culture and crime symbiotically define each other. Second, culture helps explain which courtroom narratives will be successful, and which will not. Culture influences who will be arrested, charged, convicted, and what sentence they will receive. Indeed, the invisible hand of culture drives the process of criminalization and helps to determine which acts we will sanction through criminal statutes.
United States V. Erwin And The Folly Of Intertwined Cooperation And Plea Agreements, Kevin Bennardo
United States V. Erwin And The Folly Of Intertwined Cooperation And Plea Agreements, Kevin Bennardo
Washington and Lee Law Review Online
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should …
Time To Unpack The Juggernaut?: Reflections On The Canadian Federal Parliamentary Debates On "Cyberbullying", Jane Bailey
Time To Unpack The Juggernaut?: Reflections On The Canadian Federal Parliamentary Debates On "Cyberbullying", Jane Bailey
Dalhousie Law Journal
Cyberbullying has come to the fore in federal parliamentary debate largely in the last two years in tandem with high profile media reporting of several teen suicides. The government responded with the Protecting Canadians from Online Crime Act that incorporates, among other things, criminal law responses to nonconsensual distribution of intimate images and gender-based hate propagation, but only at the expense of expanded state surveillance. However, a review of the parliamentary debates reveals a richer array of approaches in which the efficacy of criminal law responses was contested. This article reports on the diversity of viewpoints that emerged within the …
Two Models Of "Absence Of Movement" In Criminal Jurisprudence, Roni M. Rosenberg
Two Models Of "Absence Of Movement" In Criminal Jurisprudence, Roni M. Rosenberg
Roni M Rosenberg
ABSTRACTThe distinction between act and omission is deeply embedded in our legal thinking. In criminal jurisprudence, in order to convict someone of committing an act that caused harm, any act will suffice .On the other hand, to convict based on an omission that caused harm it is necessary to identify a duty to act on the part of the defendant, such that breach of that duty caused the harm.The generally accepted approach in criminal jurisprudence is to define act and omission under the bodily movement test. This essay critiques that approach and points to the fact that American jurisprudence is …
Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax
Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax
Articles in Law Reviews & Other Academic Journals
When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …
Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence, Kelly M. Driscoll
Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence, Kelly M. Driscoll
Montana Law Review
Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence
The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders, Johnna Preble
The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders, Johnna Preble
Montana Law Review
The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders
Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy
Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy
Faculty Publications
In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …
"Stand Your Ground" In Context: Race, Gender, And Politics, Donna Coker
"Stand Your Ground" In Context: Race, Gender, And Politics, Donna Coker
University of Miami Law Review
No abstract provided.
The System Of Modern Criminal Conspiracy, Steven R. Morrison
The System Of Modern Criminal Conspiracy, Steven R. Morrison
Catholic University Law Review
No abstract provided.
The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law? , Michael Vitiello
The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law? , Michael Vitiello
Nevada Law Journal
No abstract provided.
The Punishment Should Fit The Crime—Not The Prior Convictions Of The Person That Committed The Crime: An Argument For Less Impact Being Accorded To Previous Convictions, Mirko Bagaric
San Diego Law Review
The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders …
Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein
Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein
Touro Law Review
No abstract provided.
Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman
Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman
Touro Law Review
No abstract provided.
La Lucha Del Derecho Contra El Negacionismo: Una Peligrosa Frontera. Particular Estudio De Los Ordenamientos Italiano Y Español, Germán M. Teruel Lozano
La Lucha Del Derecho Contra El Negacionismo: Una Peligrosa Frontera. Particular Estudio De Los Ordenamientos Italiano Y Español, Germán M. Teruel Lozano
Germán M. Teruel Lozano
The struggle of the Law against negationism: a dangerous border. Particular study of the Spanish and Italian legal system (PhD. Thesis) - The document content an abstract of the thesis in English, Spanish and Italian.
Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson
Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson
All Faculty Scholarship
The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of …
The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.
The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.
Scholarly Works
A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction …