Law Commons^™

A Witness To Justice, Jessica M. Silbey

Jessica Silbey

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the "right" kind of witness would …

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Faculty Scholarship

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?

This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

Reviewing Kenneth S. Gallant, The Principle Of Legality In International And Comparative Criminal Law (2009), Mark A. Drumbl

Scholarly Articles

Not available.

When Human Experimentation Is Criminal, Song Richardson

Articles in Law Reviews & Other Academic Journals

Medical researchers engaged in human experimentation commit criminal acts seemingly without consequence. Whereas other actors who violate bodily integrity and autonomy are routinely penalized with convictions for assault, fraud, and homicide, researchers escape criminal punishment. This Article begins to scrutinize this undercriminalization phenomenon and provides a framework for understanding why researchers are not prosecuted for their crimes. It argues that their exalted social status, combined with the perceived social benefit of their research, immunizes them from use of the criminal sanction. Whether these constitute sufficient grounds to give researchers a pass from punishment is a significant question because the state's …

Ignorance Is Effectively Bliss: Collateral Consequences, Silence, And Misinformation In The Guilty-Plea Process, Jenny Roberts

Articles in Law Reviews & Other Academic Journals

In the 2009-2010 term, the U.S. Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but "collateral" consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence-every jurisdiction, that is,except Kentucky. The Supreme Court of …

The Anti-Case Method: Herbert Wechsler And The Political History Of The Criminal Law Course, Anders Walker

All Faculty Scholarship

This article is the first to recover the dramatic transformation in criminal law teaching away from the case method and towards a more open-ended philosophical approach in the 1930s. It makes three contributions. One, it shows how Columbia Law Professor Herbert Wechsler revolutionized the teaching of criminal law by de-emphasizing cases and including a variety of non-case related material in his 1940 text Criminal Law and Its Administration. Two, it reveals that at least part of Wechsler's intention behind transforming criminal law teaching was to undermine Langdell's case method, which he blamed for producing a "closed-system" view of the law …

Christian V. State: An Unnecessary Overcorrection Threatens The Law Of Criminal Assault, Christopher Dahl

Maryland Law Review

No abstract provided.

Defending Demaree: The Ex Post Facto Clause's Lack Of Control Over The Federal Sentencing Guidelines After Booker, Daniel M. Levy

Fordham Law Review

In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant’s Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury. As a solution, the Court modified the Guidelines to be “advisory,” yet curiously held that sentences were still subject to appellate review for reasonableness. Given this tension, U.S. courts of appeals are split on whether the Guidelines are “laws,” subject to the Ex Post Facto Clause of the U.S. Constitution. This Note argues that the Guidelines are advisory, given …

The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill

Articles & Chapters

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The …

What’S Wrong With Victims’ Rights In Juvenile Court?: Retributive V. Rehabilitative Systems Of Justice, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

While scholars have written extensively about the victims’ rights movement in capital and criminal cases, there has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victims’ rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the …

Can Our Shameful Prisons Be Reformed?, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

R. V. Ha: Upholding General Warrants Without Asking The Right Questions, Steve Coughlan

Articles, Book Chapters, & Popular Press

To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that: The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert …

The Expanding Use Of The Res Gestae Doctrine, H. Patrick Furman, Ann England

Publications

This article provides a brief history of the doctrine of res gestae and an analysis of its current usage in both Colorado state and federal courts.

Rape, Feminism, And The War On Crime, Aya Gruber

Publications

Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. In apparent lock step with the movement of the American penal system, feminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. In the rape context, this effort has produced mixed results. Sexual assault laws that adopt prevailing views of criminality and victimhood, such as predator laws, enjoy great popularity. However, reforms that target the difficulties of date rape prosecutions and seek to counter gender norms, such as rape shield and affirmative consent laws, are controversial, sporadically-implemented, …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

I Remember Professor Wechsler, Yale Kamisar

Articles

This year marks the one hundredth anniversary of the birth of Professor Herbert Wechsler, one of the greatest criminal law scholars in American history. When I first met Professor Wechsler (in the spring of 1951, in my first year of law school), I was struck by how old he seemed at the time and how young he actually was (forty-two). One reason he appeared to be much older than his age was that he was such a stem, imposing figure. Another reason was that he had already accomplished so much. At the age of twenty-eight, he had co-authored (with his …

The Strong Medicine Of Overbreadth As Applied To Criminal Libel, Gideon Newmark

Case Western Reserve Law Review

No abstract provided.

The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey

Faculty Scholarship

The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …

A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson

All Faculty Scholarship

Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person’s use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of deadly …

Liability Insurance At The Tort-Crime Boundary, Tom Baker

All Faculty Scholarship

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance …

American Oresteia: Herbert Wechsler, The Model Penal Code, And The Uses Of Revenge, Anders Walker

All Faculty Scholarship

The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims." Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution. Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC). This article recovers that role by focusing on the retributive views of its first …

On Race Theory And Norms, Christian Sundquist

Articles

This article has been adapted from an address given at the Albany Law Review Symposium in Spring 2009. This article discusses the judicial acceptance of DNA random match estimates, which uses DNA analysis to estimate the likelihood that a criminal defendant is the source of genetic material that is found at a crime scene. Relying on race, these tests demonstrate how such a re-inscription of race as a biological entity threatens the modern conception of race as a social construction, and how those estimates should be rejected as inadmissible on a doctrinal level under the Federal Rules of Evidence.

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

Spreigl Evidence: Still Searching For A Principled Rule, Ted Sampsell-Jones

Faculty Scholarship

This article first examines how Minnesota’s character evidence doctrine developed, with a particular focus on the historical confusion regarding the propriety of the propensity inference. It then examines current case law and argues that Minnesota’s current Spreigl doctrine routinely allows propensity evidence. It finally proposes a choice between abandoning the current Spreigl doctrine and repealing the character rule itself. The author takes no position on which alternative should be chosen, but either is better than the status quo. The current doctrine in Minnesota is a Potemkin village.

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Criminal Law: Cases And Materials, Cynthia Lee, Angela Harris

GW Law Faculty Publications & Other Works

This casebook addresses the fundamental topic of criminal law. It examines how various justifications define their criminal offenses, as well as the basic elements common to crimes in the Anglo-American tradition. This casebook includes extensive discussion of the elements of, and defenses against, particular crimes such as murder, rape, and burglary.

The authors also examine criminal law’s role within the American legal system. In doing so, the casebook introduces readers to the interplay between criminal law and issues of morality. As such, the authors approach criminal law as a system of cultural meaning, and more specifically, Anglo-American criminal law as …

Rethinking Criminal Law And Family Status , Dan Markel, Ethan J. Leib, Jennifer M. Collins

Faculty Scholarship

In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.

A Call To Action: Concrete Proposals For Reducing Widespread Animal Suffering In The United States, Dana M. Campbell

Animal Law Review

No abstract provided.

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This chapter presents an authoritative overview of self-defense against the psychotic aggressor. More specifically, it examines whether one can justifiably kill a faultless, insane assailant to save himself or another from imminent and serious harm. It considers the disagreement among scholars as to whether the defensive response should be considered justified or merely excused, or whether the specific ground of acquittal should be self-defense or necessity. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as proportionality, self-defense against wrongful attack, justification of homicide against innocent aggressors without …