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Full-Text Articles in Law
Proportionalities, Youngjae Lee
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
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
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
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 …
Efficiency, Enforcement, And Punishment, Jim Staihar
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 …
Prosecutorial Accountability 2.0, Bruce Green, Ellen Yaroshefsky
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 …