Law Commons^™

Of Breaches Of The Peace, Home Invasions, And Securities Fraud, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Crimes That Count Twice: A Reexamination Of Rico's Nexus Requirements Under 18 U.S.C. §§ 1962(C) And 1964(C), Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeering Influenced and Corrupt Organizations Act makes it difficult to determine when “ordinary” crimes spill over into RICO violations. This Article examines and synthesizes various “nexus” requirements that courts have devised to separate non-RICO crimes from full-blown RICO violations. The Article concludes with a discussion of the United States Supreme Court’s recent holding in Anza v. Ideal Steel Supply Corporation, 126 S. Ct. 1991 (2006), which sharply limits certain types of civil RICO claims.

A Limited Defense Of Clinical Placebo Deception, Adam Kolber

Faculty Scholarship

No abstract provided.

Who Is To Shame? Narratives Of Neonaticide, Susan Ayres

Faculty Scholarship

In seventeenth-century England, single women who killed their newborns were believed to have acted to hide their shame. They were prosecuted under the 1624 Concealment Law and punished by death. This harsh response eventually evolved into a more humane and sympathetic one, as shown by the increasing number of acquittals in the late eighteenth century and by the sharp drop of prosecutions in the late nineteenth century. Then, in 1922, England passed the Infanticide Act, amended in 1938, which provided that a mother who killed her child would be prosecuted for manslaughter, not murder. Today, the great majority of women …

Uk Car-Flipping: The Vat Fraud Market-Place And Certified Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Missing Trader Intra-Community (MTIC) fraud and its offspring carousel fraud and contra trading fraud are siphoning huge amounts of VAT revenue from the UK Treasury. This fraud is not a function of the goods involved. It is a function of the market-place. Recently another type of market-place dependent VAT fraud has taken hold in the UK - car-flipping.

In some instances the market-place where these frauds festers is a pre-existing or natural market-place, one that grows out of legitimate commercial practices. Fraudsters enter this market-place (so the argument goes) and take advantage of legitimate businesses who unwittingly get caught up …

Criminal Law's "Mediating Rules": Balancing, Harmonization, Or Accident?, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach

Faculty Scholarship

No abstract provided.

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Giovanna Shay, Johanna Kalb

Faculty Scholarship

In the last several years, the Supreme Court has decided a number of important challenges to the government’s conduct of its “War on Terror.” Brought on behalf of persons alleged to be “enemy combatants,” many of whom were detained at Guantánamo Bay, these suits challenged the prisoners’ indefinite detention, asserted their right to access federal courts, and questioned the legality of the tribunals created to adjudicate the charges against them. The debate about the detainees’ access to federal courts has continued in Congress, with the passage of the Military Commissions Act (MCA), and in the lower courts, with challenges to …

Beyond Blame—Mens Rea And Regulatory Crime, Arthur Leavens

Faculty Scholarship

In the first part of this Article, the Author briefly outlines the conceptual underpinnings of the common law approach to mens rea, with its blame focus, and the Supreme Court's early efforts to develop a different approach in interpreting regulatory criminal statutes. The Author begins the second part of this Article with Lambert v. California, in which the Court staked out the constitutional limits for the employment of strict liability in public welfare or regulatory crimes, and, first employed notice-based mens rea. This part goes on to examine the ensuing cases in which the Court, at least implicitly, fleshes out …

Criminal Law's Mediating Rules: Balancing, Harmonization, Or Accident, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio

Faculty Scholarship

This article first explores the mythological origins of the term "chimera." It then explores the causes and scientific explanations of chimerism and the various conditions covered by the term chimera in the area of genetics. Although this article will discuss the various chimeric conditions that are thought to exist, its primary focus is on chimerism that is the result of the fusing of embryos in utero. Next, the article will discuss recent cases of chimerism - and of alleged chimerism - and how the genetic differences between chimeras and the general population came to light. It also will discuss …

Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations, Sonja Starr

Faculty Scholarship

No abstract provided.

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss

Faculty Scholarship

This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …

Purposes And Effects In Criminal Law, Samuel W. Buell

Faculty Scholarship

This brief comment, published in the Virginia Law Review's online companion, responds to Richard Bierschbach's and Alex Stein's article, Mediating Rules in Criminal Law.

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

End Natural Life Sentences For Juveniles, Jeffrey A. Fagan

Faculty Scholarship

In 2005, the U.S. Supreme Court in Roper v. Simmons (125 S. Ct. 1183) banned executions of persons who commit capital murder before they reach age 18. Roper overturned death sentences for 72 people in 18 states (Streib, 2005). Most (but not all) were resentenced to natural life or life in prison without the possibility of parole (or JLWOP). Juvenile justice advocates now want to extend Roper’s maturity heuristic, proportionality analysis, aversion to errors, and deference to international laws and norms to argue for a constitutional ban on natural life sentences for adolescent offenders. This move could have a far …

Criminal Procedure Within The Firm, Samuel W. Buell

Faculty Scholarship

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual …

Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell

Faculty Scholarship

Present sentencing law in criminal cases of financial reporting fraud is embarrassingly flawed. The problem is urgent given that courts are now regularly sentencing corporate offenders, sometimes (but sometimes not) to extremely punitive terms of imprisonment. Policing of fraud by multiple jurisdictions in a federal system means that principled sentencing law is necessary not only for first-order policy reasons but also for coordination of sanctioning efforts. Proportionality and rationality demand that sentencing law have an agreed scale for measuring cases of financial reporting fraud in relation to each other, a sound methodology for fixing a given case on that scale, …

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of broken windows policing in 1994 – nicely documented in this issue in Andrew Golub, Bruce Johnson, and Eloise Dunlap's article (2007) – is almost enough to make an outside observer ask: Who thought of this idea in the first place? And what were they smoking?

By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached a peak of 51,267 for the city, up 2,670% from 1,851 arrests in 1994. In 1993, the year before broken windows policing was implemented, …

The Danger Of Future Dangerousness In Death Penalty Use, Brian Sites

Faculty Scholarship

In spite of thousands of years of science, humankind is distinctly unable to predict the future. And yet, the judicial system is called upon to do just so daily. In bail considerations, judges predict flight risk. In parole hearings, officials contemplate the likelihood of reoffense. And in three states, a defendant convicted of a capital crime will live or die based on what a judge and jury thinks he will do in an unknown future. It has been observed that “what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty …

The International Criminal Tribunal For Rwanda As The Theater: The Social Negotiation Of The Moral Authority Of International Law, Maya Steinitz

Faculty Scholarship

The international criminal courts (ICCs) - the ad hoc International Criminal Tribunals for the Former-Yugoslavia and for Rwanda, the recently-established permanent International Criminal Court, and hybrid internationalized tribunals such as the Special Court for Sierra Leone - are the international community's attempt to address the worst of the criminal manifestations of racism, nationalism and large-scale xenophobia. Based on five months of ethnographic research at the international criminal tribunal for Rwanda (ICTR), analyzed using Erving Goffman's dramaturgical framework, this article examines the means through which moral authority is constructed and communicated by the ICTR. Specifically, the article advances the argument that …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib

Faculty Scholarship

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Criminal Defense Lawyering At The Edge: A Look Back Lawyering At The Edge: Unpopular Clients, Difficult Cases, Zealous Advocates, Bruce A. Green

Faculty Scholarship

This Article is an attempt to reconstruct the story of a New York City lawyer's professional death and resurrection. In particular, this is the story of John Palmieri's defense of John J. Delane in the year 1915, a time in the history of the legal profession when the bounds of zealous representation, particularly in criminal cases, were blurry and in transition. This is also the story of what followed the Delane trial: the efforts of prosecutorial, disciplinary, and judicial authorities to resolve factual and legal uncertainties about Palmieri's conduct and intentions in defending his client, their efforts to locate the …

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer …

Compelled Cooperation And The New Corporate Criminal Procedure, Lisa Kern Griffin

Faculty Scholarship

In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to investigate and prosecute corporate crimes. This Article examines the use of stringent cooperation requirements and deferred prosecution agreements, pursuant to which corporate internal investigations have become extensions of government enforcement efforts. At the same time, liability has shifted markedly to the employee level: Over one thousand individuals have been indicted and convicted since the July 2002 creation of the Corporate Fraud Task Force, while few corporations have been charged. The convergence of corporate cooperation doctrine with the focus on individual targets results …

Confrontation As Constitutional Criminal Procedure: ‘Crawford’S’ Birth Did Not Require That ‘Roberts’ Had To Die’, Robert P. Mosteller

Faculty Scholarship

No abstract provided.

Bad Nature, Bad Nurture, And Testimony Regarding Maoa And Slc6a4 Genotyping In Murder Trials, Nita A. Farahany, William Bernet, Cindy L. Vnencak-Jones, Stephen A. Montgomery

Faculty Scholarship

Recent research—in which subjects were studied longitudinally from childhood until adulthood—has started to clarify how a child’s environment and genetic makeup interact to create a violent adolescent or adult. For example, male subjects who were born with a particular allele of the monoamine oxidase A gene and also were maltreated as children had a much greater likelihood of manifesting violent antisocial behavior as adolescents and adults. Also, individuals who were born with particular alleles of the serotonin transporter gene and also experienced multiple stressful life events were more likely to manifest serious depression and suicidality. This research raises the question …