Law Commons^™

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

To Furman Or Not To Furman, Robert M. Sanger

Robert M. Sanger

In capital litigation, the United States Supreme Court in Furman v. Georgia and following cases required capital punishment systems to have a form of "narrowing" so that the death penalty was imposed only on the worst of the worst. The death penalty states have failed to successfully implement this concept. As a result, "narrowing" is currently raised in all capital cases by competent defense counsel both at trial and in post conviction litigation. It is raised in addition to all other issues, including issues related to the questions of whether exclusion from the death penalty should be expanded and whether …

Decisions Rules And Conduct Rules: On Acoustic Separation In Criminal Law, Meir Dan-Cohen

Meir Dan-Cohen

No abstract provided.

Dualism And Doctrine, Alex Stein, Dov Fox

Alex Stein

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …

Catalogs, Alex Stein, Gideon Parchomovsky

Alex Stein

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Cruelty In Criminal Law: Four Conceptions, Paulo Barrozo

Paulo Barrozo

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. No one should be neutral in relation to cruelty. Eminently, cruelty in criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of …

In Defense Of Specialized Theft Statutes, David Gray

David C. Gray

This essay is an invited contribution to a symposium hosted by the New England Law Review in celebration of Stuart Green’s important book 13 Ways to Steal a Bicycle. As we note, Professor Green’s argument is so reasonable and executed in such elegant prose, there is little call for anything other than praise. Nevertheless, in the spirit of academic exchange, we challenge Professor Green’s skepticism of specialized theft statutes. Relying on retributivist theories of criminal punishment, we argue that specialized theft statutes have an important role to play in contemporary criminal law by educating the public about the necessary commitments …

The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron

Danielle Keats Citron

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky

Alex Stein

In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

The concept of a perverse verdict is one that pervades the Criminal justice system of nearly all common law jurisdictions. The English Criminal Justice system is no exception and the concept has become institutionalised as if it were a true occurrence. This paper challenges the idea and argues that it is, technically, a legal non-event given the system of trial by jury. The theory is that besides the jury, no one else is invested with the power and authority to declare a verdict and this position is supported both by legal custom and the mechanism of the criminal justice system. …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

David C. Gray

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber

David C. Gray

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability …

Beyond A Reasonable Doubt -- Human Dignity And Respect, Robert M. Sanger

Robert M. Sanger

Essay on the Role of the Criminal Defense Lawyer. Criminal defense lawyers are often asked, "How can you represent "those" people?" The article contends that the answer is that the defense lawyer's job is to stand up for the dignity of the individual client and demand respect from the system for that client.

Magistrate Judges, Article Iii, And The Power To Preside Over Federal Prisoner Section 2255 Proceedings, Ira P. Robbins

Ira P. Robbins

Attempting The Impossible: The Emerging Consensus, Ira P. Robbins

Ira P. Robbins

Chinese Encounters, Robert M. Sanger

Robert M. Sanger

A Review of the book Chinese Encounters by Inge Morath and Arthur Miller. Miller inquired about cultural and legal issues in China as one of the first American intellectuals to be given relatively free access to China since the Mao regime. Inge Morath provided remarkable photographs. The significance was the juxtaposition of Miller's adherence to the Western concept of the Rule of Law with the communitarian values of Chinese culture.