Law Commons^™

Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres

Journal of Legislation

No abstract provided.

Non-Merit-Based Tests Have No Merit: Restoring District Court Discretion Under § 1915(E)(1), John R. Fitzgerald

Notre Dame Law Review

This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding § 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests. Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) …

The Law Of Deception, Amit Pundik

Notre Dame Law Review Reflection

The purpose of this Essay is both descriptive and normative. On the descriptive level, this Essay details the Israeli jurisprudence and scholarly opinions on the issue of rape by deception in a way accessible to non-Hebrew readers, and briefly compares it with approaches taken elsewhere. On the normative level, the Essay seeks to show that the various attempts to answer the question of which characteristics can constitute deception all fail. In particular, it seeks to show that the Israeli approach is the least attractive, a conclusion that, it is hoped, may serve as a warning to reformers in other jurisdictions …

Rejoining Moral Culpability With Criminal Liability: Reconsideration Of The Felony Murder Doctrine For The Current Time, William Bald

Journal of Legislation

No abstract provided.

The Pragmatic Disappointment Of State Preemption: The 2016 Defend Trade Secrets Act And Its Failure To Protect Employee Whistleblowers From Federal Computer Crime Law, Kristine Craig

Journal of Legislation

No abstract provided.

Sentencing Enhancement For Aggravating Role: The Need For The Numerosity Test As The Legal Standard For The "Otherwise Extensive" Criminal Activity Determination, Nicole Borczyk

Journal of Legislation

No abstract provided.

The Criminalization Of School Choice: Punishing The Poor For The Inequities Of Geographic School Districting, La Darien Harris

Journal of Legislation

No abstract provided.

Solitary Troubles, Alexander A. Reinert

Notre Dame Law Review

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

Incorrigible Students: A Criminal Oxymoron?, Shannon Lewry

Notre Dame Law Review

The Note proceeds in two Parts. The remainder of the Introduction presents a closed door: the Supreme Court’s hesitancy, to date, to find juvenile- life-without-parole sentences unconstitutional under the Eighth Amendment. After exploring the contours of the closed Door, the Introduction turns to an open window: education law. This, I argue, may be wielded to attack the lawfulness of juvenile-life-without-parole sentences on wholly nonconstitutional grounds. The Introduction concludes with remarks regarding this Note’s relevance and timeliness. Part I tracks the Note’s central argument, premise by premise, that state compulsory education laws and juvenilelife- without-parole sentences are wholly incompatible. Part II …

Illegitimate Overprescription: How Burrage V. United States Is Hindering Punishment Of Physicians And Bolstering The Opioid Epidemic, Alyssa M. Mcclure

Notre Dame Law Review

Due to the concerns Burrage raises and its implications for the nation’s current opioid crisis, this Note proposes that Congress should broaden the circumstances in which the penalty enhancement of section 841(b) may be applied. Part I of this Note discusses the opioid crisis and the role physicians play in it. Part II explores the section of the Controlled Substances Act used to criminally charge physicians and the exception the Act provides for physicians prescribing opioids within the scope of relevant medical conduct and professional practice. Part III analyzes Burrage v. United States and examines the immediate legal consequences of …

18 U.S.C. § 922(G)(1) Under Attack: The Case For As-Applied Challenges To The Felon-In-Possession Ban, Kari Lorentson

Notre Dame Law Review

Part I of this Note outlines the relevant statutory scheme governing the felon-in-possession ban, along with its applicable exceptions. Part II surveys landmark Supreme Court precedent related to the Second Amendment— namely, District of Columbia v. Heller and McDonald v. City of Chicago. In Part III, this Note conducts an overview of the current circuit split percolating in the courts of appeals. Part IV presents a rationale and justification for permitting judicial review of as-applied challenges to § 922(g)(1). Finally, Part V provides a critique of the Binderup analysis and puts forth an alternative standard to analyze similar cases.

Structural Change In State Postconviction Review, Lee Kovarsky

Notre Dame Law Review

This Article's ultimate objectives are to diagnose, predict, and evaluate structural change in State PCR. Because claims and evidence necessary to enforce constitutional rights increasingly require a meaningful collateral forum, and because the federal collateral forum is so limited, State PCR is, for lack of a better term, the Last Man Standing. That status is not lost on the Supreme Court and lower federal judges, who are adapting available legal rules to try to improve the efficacy of collateral process in state court. And such adaptation does add to the bite of criminal-process rights, the underenforcement of which is perceived …

Convicting With Reasonable Doubt: An Evidentiary Theory Of Criminal Law, Doron Teichman

Notre Dame Law Review

This Article presents an evidentiary theory of substantive criminal law according to which sanctions are distributed in proportion to the strength of the evidence mounted against the defendant. It highlights the potential advantages associated with grading penalties in proportion to the probability of wrongdoing and situates this claim within both consequentialist and deontological theories of punishment. Building on this analysis, the Article reviews the doctrinal tools used to achieve the goal of evidentiary grading of sanctions and shows that key factors in criminal law are geared towards dealing with evidentiary uncertainty. Finally, the Article explores the underlying logic of the …

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

"Innocence" And The Guilty Mind, Stephen F. Smith

Journal Articles

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, the goal being to define the mental element in terms that will protect offenders from conviction unless they had adequate notice of the wrongfulness of their conduct. The Supreme Court’s recent decision in Elonis v. United States signals a significant shift in mens readoctrine, recognizing for the first time the potential for disproportionately severe punishment as a justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment …