Law Commons^™

Of Breaches Of The Peace, Home Invasions, And Securities Fraud, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Crimes That Count Twice: A Reexamination Of Rico's Nexus Requirements Under 18 U.S.C. §§ 1962(C) And 1964(C), Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeering Influenced and Corrupt Organizations Act makes it difficult to determine when “ordinary” crimes spill over into RICO violations. This Article examines and synthesizes various “nexus” requirements that courts have devised to separate non-RICO crimes from full-blown RICO violations. The Article concludes with a discussion of the United States Supreme Court’s recent holding in Anza v. Ideal Steel Supply Corporation, 126 S. Ct. 1991 (2006), which sharply limits certain types of civil RICO claims.

Who Is To Shame? Narratives Of Neonaticide, Susan Ayres

Faculty Scholarship

In seventeenth-century England, single women who killed their newborns were believed to have acted to hide their shame. They were prosecuted under the 1624 Concealment Law and punished by death. This harsh response eventually evolved into a more humane and sympathetic one, as shown by the increasing number of acquittals in the late eighteenth century and by the sharp drop of prosecutions in the late nineteenth century. Then, in 1922, England passed the Infanticide Act, amended in 1938, which provided that a mother who killed her child would be prosecuted for manslaughter, not murder. Today, the great majority of women …

A Limited Defense Of Clinical Placebo Deception, Adam Kolber

Faculty Scholarship

No abstract provided.

Uk Car-Flipping: The Vat Fraud Market-Place And Certified Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Missing Trader Intra-Community (MTIC) fraud and its offspring carousel fraud and contra trading fraud are siphoning huge amounts of VAT revenue from the UK Treasury. This fraud is not a function of the goods involved. It is a function of the market-place. Recently another type of market-place dependent VAT fraud has taken hold in the UK - car-flipping.

In some instances the market-place where these frauds festers is a pre-existing or natural market-place, one that grows out of legitimate commercial practices. Fraudsters enter this market-place (so the argument goes) and take advantage of legitimate businesses who unwittingly get caught up …

Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach

Faculty Scholarship

No abstract provided.

Criminal Law's "Mediating Rules": Balancing, Harmonization, Or Accident?, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio

Faculty Scholarship

This article first explores the mythological origins of the term "chimera." It then explores the causes and scientific explanations of chimerism and the various conditions covered by the term chimera in the area of genetics. Although this article will discuss the various chimeric conditions that are thought to exist, its primary focus is on chimerism that is the result of the fusing of embryos in utero. Next, the article will discuss recent cases of chimerism - and of alleged chimerism - and how the genetic differences between chimeras and the general population came to light. It also will discuss …

Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations, Sonja Starr

Faculty Scholarship

No abstract provided.

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Criminal Defense Lawyering At The Edge: A Look Back Lawyering At The Edge: Unpopular Clients, Difficult Cases, Zealous Advocates, Bruce A. Green

Faculty Scholarship

This Article is an attempt to reconstruct the story of a New York City lawyer's professional death and resurrection. In particular, this is the story of John Palmieri's defense of John J. Delane in the year 1915, a time in the history of the legal profession when the bounds of zealous representation, particularly in criminal cases, were blurry and in transition. This is also the story of what followed the Delane trial: the efforts of prosecutorial, disciplinary, and judicial authorities to resolve factual and legal uncertainties about Palmieri's conduct and intentions in defending his client, their efforts to locate the …

The Danger Of Future Dangerousness In Death Penalty Use, Brian Sites

Faculty Scholarship

In spite of thousands of years of science, humankind is distinctly unable to predict the future. And yet, the judicial system is called upon to do just so daily. In bail considerations, judges predict flight risk. In parole hearings, officials contemplate the likelihood of reoffense. And in three states, a defendant convicted of a capital crime will live or die based on what a judge and jury thinks he will do in an unknown future. It has been observed that “what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty …

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of broken windows policing in 1994 – nicely documented in this issue in Andrew Golub, Bruce Johnson, and Eloise Dunlap's article (2007) – is almost enough to make an outside observer ask: Who thought of this idea in the first place? And what were they smoking?

By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached a peak of 51,267 for the city, up 2,670% from 1,851 arrests in 1994. In 1993, the year before broken windows policing was implemented, …

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

Institutional Competence And Organizational Prosecutions, Daniel C. Richman

Faculty Scholarship

The business pages regularly provide graphic stories about corporate deferred prosecution agreements (“DPAs”). And commentators regularly fulminate about this alleged abuse of government power, quite confident (or w illfully blind to the fact) that the removal of this non-nuclear option from the prosecutorial arsenal would substantially lessen the ability of prosecutors to obtain cooperation from firms and their employees. Yet this emerging practice has received all too little scholarly attention, and Professor Brandon Garrett has made an important contribution by carefully examining the available facts and creatively drawing on the structure reform literature to highlight questions it raises about legitimacy …

Judging Untried Cases, Daniel C. Richman

Faculty Scholarship

That federal criminal trials are an endangered species is clear. During fiscal year 2004, only 4% (3346) of the 83,391 federal defendants in terminated cases went to trial. And, trends that Professor Ronald Wright highlights in his insightful article have continued past the end point of his data. In 1994, 4639 defendants obtained verdicts from juries and 1050 from judges; in 2003, just 2909 and 615, respectively, did so. Every time one thinks that the system has hit an equilibrium at some “natural” distribution, the trial rate goes down a bit more.

End Natural Life Sentences For Juveniles, Jeffrey A. Fagan

Faculty Scholarship

In 2005, the U.S. Supreme Court in Roper v. Simmons (125 S. Ct. 1183) banned executions of persons who commit capital murder before they reach age 18. Roper overturned death sentences for 72 people in 18 states (Streib, 2005). Most (but not all) were resentenced to natural life or life in prison without the possibility of parole (or JLWOP). Juvenile justice advocates now want to extend Roper’s maturity heuristic, proportionality analysis, aversion to errors, and deference to international laws and norms to argue for a constitutional ban on natural life sentences for adolescent offenders. This move could have a far …

A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Faculty Scholarship

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of "Against Prediction" by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details …

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer …

Social Contagion Of Violence, Jeffrey A. Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

In this chapter, we assess whether the roller-coaster pattern of homicides in New York City beginning in 1985 fits a contagion model and identify mechanisms of social contagion that predict its spread across social and physical space. This framework for interpreting the homicide trends as an epidemic includes two perspectives. First, the sharp rise and fall are indicative of a nonlinear pattern in which the phenomenon spreads at a rate far beyond what would be predicted by exposure to some external factor and declines in a similar pattern in which the reduction from year to year exceeds what might be …

Bad Nature, Bad Nurture, And Testimony Regarding Maoa And Slc6a4 Genotyping In Murder Trials, Nita A. Farahany, William Bernet, Cindy L. Vnencak-Jones, Stephen A. Montgomery

Faculty Scholarship

Recent research—in which subjects were studied longitudinally from childhood until adulthood—has started to clarify how a child’s environment and genetic makeup interact to create a violent adolescent or adult. For example, male subjects who were born with a particular allele of the monoamine oxidase A gene and also were maltreated as children had a much greater likelihood of manifesting violent antisocial behavior as adolescents and adults. Also, individuals who were born with particular alleles of the serotonin transporter gene and also experienced multiple stressful life events were more likely to manifest serious depression and suicidality. This research raises the question …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib

Faculty Scholarship

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber

Faculty Scholarship

No abstract provided.

Criminal Law's Mediating Rules: Balancing, Harmonization, Or Accident, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Egypt: Criminal Procedure, Sadiq Reza

Faculty Scholarship

This chapter presents the criminal-procedure law of Egypt according to the sources of that law: the 1971 Constitution, the 1950 Code of Criminal Procedure, the 1958 Emergency Law, and other legislation; decisions by the Supreme Constitutional Court (SCC), the Court of Cassation, and other organs of the Egyptian judiciary; and administrative and executive regulations. Included are references to controversial aspects of this law and its practice, such as the use of military courts, state security courts, and emergency courts and powers. The chapter thus serves as an introduction to modern Egyptian criminal procedure and a reference source for scholars and …

The International Criminal Tribunal For Rwanda As The Theater: The Social Negotiation Of The Moral Authority Of International Law, Maya Steinitz

Faculty Scholarship

The international criminal courts (ICCs) - the ad hoc International Criminal Tribunals for the Former-Yugoslavia and for Rwanda, the recently-established permanent International Criminal Court, and hybrid internationalized tribunals such as the Special Court for Sierra Leone - are the international community's attempt to address the worst of the criminal manifestations of racism, nationalism and large-scale xenophobia. Based on five months of ethnographic research at the international criminal tribunal for Rwanda (ICTR), analyzed using Erving Goffman's dramaturgical framework, this article examines the means through which moral authority is constructed and communicated by the ICTR. Specifically, the article advances the argument that …