Law Commons^™

Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin

Bailey H. Kuklin

No abstract provided.

Drugs And Violence, Shima Baradaran

Shima Baradaran

The war on drugs has increased the United States prison population by tenfold. The foundation for the war on drugs and unparalleled increase in prisoners rely on the premise that drugs and violence are linked. Politicians, media, and scholars continue to advocate this view either explicitly or implicitly. This Article identifies the pervasiveness of this premise, and debunks the link between drugs and violence. It demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch

Michael L Perlin

Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, …

Quasi-Inquisitorialism: Accounting For Deference In Pretrial Criminal Procedure, Jennifer E. Laurin

Jennifer E. Laurin

The actions of police and prosecutors that take place long before a criminal trial are frequently critical to, even dispositive of the accuracy and reliability of case disposition. At the same time the regulatory touch of constitutional criminal procedure in the pretrial realm is notoriously, even insistently, light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely …

The Perverse Effects Of Efficiency In Criminal Process, Darryl K. Brown

Darryl K. Brown

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bar-gaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end …

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

No abstract provided.

Is There A Justification For Imposing Criminal Liability On Corporate Managers In Tax Legislation?, Karnit Malka

Karnit Malka

No abstract provided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Making Civil Immigration Detention “Civil,” And Examining The Emerging U.S. Civil Detention Paradigm, Mark Noferi

Mark L Noferi

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

American Hustle: Abscam, Entrapment And The Senate Expulsion Trial Of Harrison Williams, Henry P. Biggs Phd

Henry P Biggs PhD

American Hustle: Abscam, Entrapment and The Senate Expulsion Trial of Harrison Williams

The recent success of the film American Hustle has renewed curiosity in the events surrounding the Abscam scandal and its subsequent trials. This article begins by detailing the Abscam proposition as well as its players, moving on to address the contours of the defense of entrapment those accused frequently invoked. The article then focuses on the analyses of specific Abscam cases that claimed this defense. Finally, the article considers the specific case of Harrison Williams, a senator from New Jersey and the highest official ensnared in Abscam, documenting …

Remedial Discretion In Constitutional Adjudication, John M. Greabe

John M Greabe

Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.

The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing …

U.S. Insider Trading Law Enforcement: Survey Of Sec Actions From 2009 To 2013 And Issues, Chien-Chung Lin, Eric Hung

Chien-Chung Lin

This article discusses the SEC’s insider trading enforcement actions from 2009 to 2013. With an introduction of the current procedures and regulatory tools available, this article provides a thorough survey on the insider trading cases found from SEC’s official website, related databases and litigation releases in the corresponding period and compiles the results in appendices. In doing so, we present a first-hand, detailed picture of insider trading law in the United States and its enforcement. The data also relates to several much debated theoretical issues in this area, including the merit of punishing insider trading activities, the efficacy of current …

Grounding Drones: Big Brother’S Tool Box Needs Regulation Not Elimination, Melanie M. Reid

Melanie M. Reid

One of the most significant contemporary issues in privacy law relates to law enforcement’s new domestic surveillance tool: unmanned aerial vehicles, also known as, drones. Law enforcement’s use of aerial surveillance as an investigatory tool is currently under attack. In the past, if law enforcement chose to follow a suspect throughout the day, either on the ground or in the air, they need not worry about seeking a warrant or determining whether probable cause or reasonable suspicion exists to justify their surveillance. Aerial surveillance of criminal suspects has been considered outside the protections of Fourth Amendment law. In the 1980’s, …

The "Not A Search" Game, John F. Stinneford

John F. Stinneford

No abstract provided.

The Immigration Detention Risk Assessment, Mark Noferi, Robert Koulish

Mark L Noferi

In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history—potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.

This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ICE methodology and outcomes as a …