Law Commons^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

The Conferred Jurisdiction Of The International Criminal Court, Leila Nadya Sadat

Notre Dame Law Review

After twenty years of operation, we know that the International Criminal Court (ICC) works in practice. But does it work in theory? A debate rages regarding the proper conceptualization of the Court’s jurisdiction. Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction. They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done. Moreover, they argue that these constraints are …

Preventing Undeserved Punishment, Marah Stith Mcleod

Notre Dame Law Review

Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments?

Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit …

Ethical Ai In American Policing, Elizabeth E. Joh

Notre Dame Journal on Emerging Technologies

We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating …

The Compliance Process, Veronica Root Martinez

Journal Articles

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

Efficiency, Enforcement, And Punishment, Jim Staihar

Notre Dame Journal of Law, Ethics & Public Policy

The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be …

Coordinating Compliance Incentives, Veronica Root

Journal Articles

In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the …

Prosecutorial Accountability 2.0, Bruce Green, Ellen Yaroshefsky

Notre Dame Law Review

This Article describes the rhetorical and regulatory changes that characterize

the new prosecutorial accountability, identifies the conditions that

have enabled them to occur, and considers their implications. While identifying

various necessary conditions, the Article argues that information technology

has been the essential catalyst; the evolution could not be sustained

without the aggregation, accessibility, and communication of data and commentary

about prosecutorial misconduct that new information technology

makes readily available to the public. Given the permanence of information

technology in modern society, the Article concludes by cautiously predicting

that the contemporary regulatory movement will be sustained; the pendulum

will not swing …

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Federal Criminal Conspiracy, Todd R. Russell, O. Carter Snead

Journal Articles

Under 18 U.S.C. § 371, it is a crime for "two or more persons [to] conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose."

This Article first outlines, in Section I, the basic elements of a conspiracy offense under § 371. Defenses available to challenge charges brought under the statute are discussed in Section III of the Article. Section IV presents the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys …

Reflections On Reves V. Ernst & Young: Its Meaning And Impact On Substantive, Accessory, Aiding Abetting And Conspiracy Liability Under Rico, G. Robert Blakey, Kevin P. Roddy

Journal Articles

In March 1993, accountants, attorneys and other professionals—who generally view RICO with suspicion—breathed a sigh of relief when they read the Washington Post: "People who lose money in thrifts and other businesses that go belly up because of wrongdoing can no longer use [RICO] to sue lawyers, accountants, or other advisers who played key roles in the enterprise." Unfortunately, this terse description of the Supreme Court's decision issued the previous day in Reves v. Ernst & Young may persuade professionals that they dropped an anchor in a tranquil safe-harbor, far from an exposure to the perils of the private enforcement …

Criminal Redistribution Of Stolen Property: The Need For Law Reform, G. Robert Blakey, Michael Goldsmith

Journal Articles

The development of sophisticated fencing systems for the sale of stolen property to consumers has paralleled the industrialization of society. Although crimes against property and attempts to control them have ancient origins, most theft before the Industrial Revolution was committed for immediate consumption by the thieves and their accomplices rather than for redistribution in the market-place. Society's small population, inadequate transportation and communication systems, and technological inability to mass produce identical goods constrained large-scale fencing because there were few buyers and because stolen property could be readily identified. The unprecedented economic and demographic growth in eighteenth-century Europe, however, removed these …

Criminal Law And Procedure--Bringing It Home, Fernand N. Dutile

Journal Articles

When I first began teaching six years ago at the Catholic University Law School, one of the two sections of Criminal Law and Procedure assigned to me was approximately 33 % larger than the other. I remember feeling a considerable difference in atmosphere in the two sections, due to the numbers involved. In the smaller section, discussion seemed more intimate, more coherent, more shared by all the students. I felt able to know students better and more quickly. It is stunning now to realize that the larger section in that 1966-67 school year numbered 32 students! When I left Catholic …