Law Commons^™

The Supreme Courts: Did 9/11/2001 Accelerate Their Sanctioning The Constitutionality Of Criminalizing Suspicion?, Dannye Holley

Dannye Holley

This article evaluates if in the 6.5 years since the bombing of the World Trade Towers and the Pentagon, the nation's highest appellate courts were, on balance, more willing to acquiesce in criminalization based on only suspicion. The article seeks to accomplish this evaluation by comparing decisions of the United States and the States’ Supreme Courts in the six years before September 2001, and the six years since the terrorist attack to determine if these courts with the greatest authority to sanction the criminalization of suspicion in fact have been more willing to do just that. Such a post 9/11/2001 …

Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller

Colin Miller

With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The “mercy rule” falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended …

Knock And Talk, Craig M. Bradley

Craig M. Bradley

No abstract provided.

Prosecutorial Shaming, Adam M. Gershowitz

Adam M. Gershowitz

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

The Sixth Amendment's Textual Core, Sanjay K. Chhablani

Sanjay K. Chhablani

The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, broadly requires that defendants be provided seven fundamental procedural protections. Over the course of the past five decades, the scope and meaning of these critical safeguards have undergone tremendous change, with series of expansive and restrictive readings. Through this jurisprudential development, several provisions of the Sixth Amendment have been interpreted in a manner that contravenes the plain meaning of its text, rendering the Amendment far less protective of individual liberty. After developing a comprehensive historical account of the Court’s Sixth Amendment jurisprudence, this Article provides …

Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman

Joanne Gottesman

Reforms over the past decade have transformed the immigration law landscape and have led to more noncitizens than ever being subject to removal for less serious crimes than in the past. As a result of these changes, proper counseling of noncitizen criminal defendants is more critical than ever. This article examines the current state of the law in New Jersey regarding immigration related ineffective assistance of counsel claims and the responsibility of criminal defense attorneys to advise noncitizen clients about immigration consequences. It recommends judicial, legislative, and professional changes to better ensure that noncitizen defendants are properly advised about immigration …

Exporting Harshness: How The War On Crime Has Made The War On Terror Possible, James Forman

James Forman Jr.

This Essay responds to a consensus that has formed among many opponents of the Bush administration’s prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system’s expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition.

It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war …

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun

Susan W Tiefenbrun

Abstract:Gendercide and the Cultural Context of Sex Trafficking in China

By Susan Tiefenbrun and Christie Edwards

Women in China are bought and sold, murdered and made to disappear in order to comply with a strict government One Child Policy that coincides with the cultural tradition of male-child preference and discrimination against women. Everyday “500 female suicides” occur in China because of “violence against women and girls, discrimination [against women] in education and employment, the traditional preference for male children, the country’s birth limitation policies, and other societal factors…” As a result of a widespread and arguably systematic disappearance and death …

Predicting Crime, Todd Henderson

Todd Henderson

Prediction markets have been proposed for a variety of public policy purposes, but no one has considered their application in perhaps the most obvious policy area: crime. This paper proposes and examines the use of prediction markets to forecast crime rates and the impact on crime from changes to crime policy, such as resource allocation, policing strategies, sentencing, post-conviction treatment, and so on. We make several contributions to the prediction markets and crime forecasting literature.

First, we argue that prediction markets are especially useful in crime rate forecasting and criminal policy analysis, because information relevant to decision makers is voluminous, …

United States V. O’Keefe: Do The Federal Rules Of Civil Procedure Provide The Proper Framework For Managing “Data Dumping” In A Criminal Case?, David W. Degnan

David W Degnan

In 2008, two criminal cases addressed large amounts of unintelligible documents being dumped on the unprepared defendant: United States v. O’Keefe and United States v. Graham. O’Keefe teaches that when the Rules of Criminal Procedure are silent in a criminal case, the civil discovery rules provides a thoughtful and well reasoned answer for how to handle the production of large quantities of unintelligible documents stored electronically. Graham, on the other hand, did not apply the civil rules to a comparatively similar criminal data dumping case, but that case did re-emphasize the need and the duty to manage electronic discovery before …

"Knock And Talk" And The Fourth Amendment, Craig M. Bradley

Craig M. Bradley

No abstract provided.

"Knock And Talk" And The Fourth Amendment, Craig M. Bradley

Craig M. Bradley

No abstract provided.

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Mae C. Quinn

This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …

Independent And Adequate, Carrie Leonetti

Carrie Leonetti

No abstract provided.

The Death Penalty In Delaware: An Empirical Study, John H. Blume, Theodore Eisenberg, Sheri Johnson, Valerie P. Hans

Valerie P. Hans

This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the …

Bloodstains On A "Code Of Honor", Kenneth Lasson

Kenneth Lasson

Abstract In the real world of the Twenty-first Century, deep biases against women are prevalent in much of Muslim society. Although there is no explicit approval of honor killing in Islamic law (Sharia), its culture remains fundamentally patriarchal. As unfathomable as it is to Western minds, “honor killing” is a facet of traditional patriarchy, and its condonation can be traced largely to ancient tribal practices. Justifications for it can be found in the codes of Hammurabi and in the family law of the Roman Empire. Unfortunately, honor killings in the Twenty-first Century are not isolated incidents, nor can they be …

Criminal Forfeiture Procedure In 2008: A Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is an annual survey of the federal case law relating to criminal forfeiture procedure. Forfeiture is part of the sentence in a criminal case. The article discusses the cases from 2007 discussing the scope of criminal forfeiture, the rights of third parties, and the procedures under Rule 32.2 and Section 853, including indictment, seizure and restraint, guilty pleas, the bifurcated trial, sentencing, and the post-trial ancillary proceeding. Copyright © 2008 Thomson Reuters/West.

Curing The Real Problem: Cleaning Up Fourth Amendment Jurisprudence By Altering Our Current Exclusionary Rule To Conform With An International Model, Lawrence J. Perrone

Lawrence J Perrone

The highly controversial automatic exclusionary has been called into doubt by many, and supported by others. But it is hard to dispute that many instances where evidence is excluded for extremely technical or unforeseeable Fourth Amendment violations seem perverse to our own sense of justice. When this occurs, the public does not feel more protected, they feel unsafe. When this occurs, the public does not feel relieved, they feel uneasy. The rigid application of the American exclusionary rule has had the opposite effect of its intended design— less privacy protection for all of us. This article has three purposes. First …

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

Mortgage Fraud And The Deliberate Ignorance Jury Instruction: The Risk Of Criminal Liability For Real Estate Professionals Involved In Civil Litigation, William Z. Duffy

William Z Duffy

Those involved in the purchase or sale of real estate risk becoming entangled in a scheme to defraud a financial institution. These individuals can include the escrow agent, mortgage broker, realtor, seller, appraiser and developer. In many instances, criminal charges related to the alleged fraud will be preceded by a civil lawsuit initiated by the lending institution against the perpetrators of the fraud and anyone else connected to the transaction. When evaluating these cases, civil counsel should be aware that government prosecutors will argue that “red flags” alerted the defendant to the fraud, but the defendant purposefully closed his eyes …

Restorative Justice: Sketching A New Legal Discourse, Frank D. Hill

Frank D Hill

Restorative justice has emerged as an increasingly accepted approach to criminal law around the world over the last 30 years or so. Unlike the traditional theories of justice – Kantian justice and utilitarian efficiency – restorative justice focuses on the private rather than the public effects of crime. Restorativists emphasize the needs of primary stakeholders, namely victims and offenders, over the needs of society at large when considering how the criminal justice system should respond to crime. This Article argues this difference in focus is reflected in the various theories’ conceptions of human nature and subjectivity. While the traditional theories …

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

Police Processes And Human Rights:An Indian Criminal Procedure Analysis, Abhishek Bharti

Abhishek Bharti

Across the world there is a revamping of institutions of Government in the light of the well–recognized human rights standards. Human Rights are inherent in a person by virtue of his/her being a human. They comprise both civil and political rights as well as economic, social and cultural rights. Criminal justice as a vital institution is also reoriented in the same spirit. However, there are problems of human rights violations by criminal justice agencies. Thus, the operational styles of the public institutions should be geared to respond to the needs of the good governance and that is assured by the …

In The Name Of Efficiency, Scott Shackelford

Scott Shackelford

India, the most populous and diverse democracy in the world, has a legal system to match. This system, a composition of ancient Hindi panchayats (village assemblies), Islamic law, and a formal British judiciary, has long been under immense strain, stifling economic competiveness and the pursuit of justice alike. As Lord Delvin famously quipped “If our business methods were as antiquated as our legal methods we should be a bankrupt country.” There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

An Evaluation Of The Need For And Functioning Of The Federal Sentencing Guidelines In The United States And Nigeria, Victoria T. Kajo

Cornell Law School Inter-University Graduate Student Conference Papers

The United States Federal Sentencing Guidelines, in use since 1987, was set up to reduce disparity in sentencing and its application was made mandatory. Though there are a few who are in favor of the guidelines, the guidelines as mandatory have been severely criticized and many have called for their abolition. Consequently, in the twin cases of United States v. Booker and United States v. Fanfan (2005) 125 S.Ct. 738, the US Supreme Court delivered judgment that had the effect of making the guidelines discretionary.

While the Nigerian legal system shares a Common Law background with the United States, Nigeria …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest form. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

What Happens In North Minneapolis Doesn’T Stay In North Minneapolis: Arguing Credibility In A Criminal Trial, Rebutting Implicit Jury Bias, And Taking A New Look At Why A Prosecutor Would Tell Jurors That Civilian Witnesses Are From A “Different World”, Joshua Larson

Joshua R. Larson

In several recent homicide cases from Minneapolis, Minnesota, prosecutors have used a particular rhetorical device in closing argument that suggests to jurors that certain civilian witnesses from North Minneapolis live in a different world than the jurors do and that, therefore, the jurors must consider the witnesses’ unique cultural characteristics when weighing the witnesses’ credibility. Defense attorneys have decried these “different world” arguments, and the Minnesota Supreme Court has expressed concern that such arguments could violate a defendant’s right to a fair trial by insinuating that the defendant is from a different world and by introducing unnecessary racial or socioeconomic …