Law Commons^™

Consent To Harm, Vera Bergelson

Vera Bergelson

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

Praise Defenders, Not Just Prosecutors, Stephen E. Henderson

Stephen E Henderson

Two Models Of The Criminal Justice System: An Organizational Perspective, Malcolm M. Feeley

Malcolm Feeley

Systematic studies of the administration of justice in the United States have stressed either the rational-goal model or the functional-systems model. The former model emphasizes problems with the justice system's formal rules of operation and appears to be the dominant view of appellate judges, lawyers, and law students, while the latter model is concerned with the identification and adaptation of action to the environment and the interests of action within the system.

Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs From Embarrassing Exposure, Andrea A. Curcio

Andrea A. Curcio

No abstract provided.

Taking It To The Streets: Putting Discourse Analysis To The Service Of A Public Defender's Office, Clark D. Cunningham, Bonnie S. Mcelhinny

Clark D. Cunningham

No abstract provided.

Signaling And Plea Bargaining's Innocence Problem, Russell D. Covey

Russell D. Covey

The dominant theoretical model ofplea bargainingp redicts that, under conditions of full information and rational choice, criminal cases should uniformly be settled through plea bargaining. That prediction holds for innocent and guilty defendants alike. Because it is perfectly rational for innocent defendants to plead guilty, plea bargaining might be said to have an "innocence problem. " Plea bargaining's innocence problem is, at bottom, the result of a signaling defect. Innocent defendants lacking verifiable innocence claims are pooled together with guilty defendants who falsely proclaim innocence. As a result, both groups of defendants are treated similarly at trial and in plea …

Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey

Russell D. Covey

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the …

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Russell D. Covey

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …

Abolishing Jailhouse Snitch Testimony, Russell D. Covey

Russell D. Covey

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. …

Longitudinal Guilt: Repeat Offenders, Plea Bargaining, And The Variable Standard Of Proof, Russell D. Covey

Russell D. Covey

This Article introduces a new concept-“longitudinal guilt”-which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.” This change of mission is visible in the lower proof standards we apply to repeat criminal offenders. The first section of this Article explains how plea bargaining and graduated sentencing systems based on criminal history …

Death, Desuetude, And Original Meaning, John F. Stinneford

John F. Stinneford

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

The Complexity Of International Criminal Trials Is Necessary, 48 Geo. Wash. Int'l L. Rev. 151 (2015), Stuart Ford

Stuart Ford

There is a widespread belief among both academics and policymakers that international criminal trials are too complex. As a result, tribunals have come under enormous pressure to reduce the complexity of their trials. However, changes to trial procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to achieve their purposes. Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are …

Section By Section Commentary On The Tpp Final Ip Chapter Published 5 November 2015 – Part 3 - Enforcement, Kimberlee G. Weatherall

Kimberlee G Weatherall

This note comments on the TPP IP enforcement provisions (final text). It also compares each provision to multilateral and bilateral treaties. The material here is necessarily preliminary and does not purport to be complete. It is published on the basis that it may assist others’ analysis and commentary. Note: version 0.1 adds fn 1 reference to Bridy on ISP safe harbors.

Silencing Grand Jury Witnesses, R. Michael Cassidy

R. Michael Cassidy

The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony. In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not …

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

A 'Velvet Hammer': The Criminalization Of Motherhood And The New Maternalism, Eliza Duggan

Eliza Duggan

In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during pregnancy in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women if they use drugs. This Article suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which enforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from …

Dangerous Dicta, David Gray

David C. Gray

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is …

Gender Injustice: System-Level Juvenile Justice Reforms For Girls, Francine Sherman, Annie Balck

Francine T. Sherman

Despite decades of attention, the proportion of girls in the juvenile justice system has increased and their challenges have remained remarkably consistent, resulting in deeply rooted systemic gender injustice. The literature is clear that girls in the justice system have experienced abuse, violence, adversity, and deprivation across many of the domains of their lives—family, peers, intimate partners, and community. There is also increasing understanding of the sorts of programs helpful to these girls. What is missing is a focus on how systems—and particularly juvenile justice systems—can be redesigned to protect public safety and support the healing and healthy development of …

Evaluation Of The Ontario Mediation Program (Rule 24.1) Final Report: The First 23 Months, Robert G. Hann, Carl Baar, Lee Axon, Susan Binnie, Frederick H Zemans

Frederick H. Zemans

No abstract provided.

Privately Failing: Recidivism In Public And Private Prisons, Lee N. Gilgan

Lee N Gilgan

This study would add to available research regarding recidivism rates following incarceration in private prisons in contrast to incarceration in government-run prisons. This is a non-experimental meta-analysis viewing numerous studies discussing the effects of multiple covariants within public and private prisons. Based on the information and conclusion in these studies, we find that there is little overall consensus concerning the effects of increased privatization on recidivism. While many studies find certain aspects of privatization to have some potential effect on recidivism, there are many other aspects that either are out of scope or have a negative effect on recidivism. However, …

Testimony On Oklahoma Civil Asset Forfeiture Reform, Stephen E. Henderson

Stephen E Henderson

The Improper Use Of Presumptions In Recent Criminal Law Adjudication, Charles W. Collier

Charles W. Collier

This note argues that, in developing the contemporary mandatory-permissive standard, the Supreme Court has misunderstood the effects of presumptions on juries. Presumptions that are ‘permissive’ in theory may nevertheless be ‘mandatory’ in fact, thereby leading some juries to convict regardless of their beliefs and inclinations. Thus, these legal presumptions may undermine the moral sense and political function of the jury. Part I of this note shows, through doctrinal analysis, that the mandatory-permissive distinction is an anomaly in the Court's jurisprudence. Part II shows that this distinction is at variance with a substantial body of empirical social science research. This part …

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.

Calling In The Dogs: Suspicionless Sniff Searches And Reasonable Expectations Of Privacy, 56 Case W. Res. L. Rev. 285 (2005), Cecil J. Hunt Ii

Cecil J. Hunt II

No abstract provided.

Prosecuting Core Crimes In The United States: Recent Changes And Prospects For 2010, Naomi Roht-Arriaza

Naomi Roht-Arriaza

No abstract provided.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami

Nasiruddin Nezaami

In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only …

Under The Circumstances: Padilla V. Kentucky Still Excuses Fundamental Fairness And Leaves Professional Responsibility Lost, Maurice Hew Jr.

Maurice Y Hew Jr

The Supreme Court’s decision in Padilla v. Kentucky includes within the Sixth Amendment’s right to the effective assistance of counsel advice on immigration, but still falls short of attaining fundamental fairness and legal professional responsibility. Where Padilla’s recognized representation standard only requires an attorney to advise when the immigration consequences of a guilty plea are “truly clear” —allowing the attorney to “do no more” when not clear—the guiding hand of an attorney remains fractured and will force a noncitizen client to proceed in plea bargaining without informed consent. Rather than giving a private practitioner an excuse to “do no more,” …

Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, Hugh M. Mundy

Hugh Mundy

As the number of wrongfully convicted prisoners who are subsequently exonerated continues to rise, the importance of access to post-conviction relief also increases. Under the Illinois Post-Conviction Hearing Act, this access is restricted to petitioners who are currently imprisoned or otherwise facing a restraint on their liberty. Persons convicted of a crime who have completed their sentence are barred from pursuing post-conviction relief under the Act, regardless of the existence of exculpatory evidence that supports their innocence. Removing this procedural roadblock and interpreting the Act broadly to allow any person convicted of a crime to raise a claim of actual …

Summary Of Walker V. District Court, 120 Nev. Adv. Op. 88, Angela Morrison

Angela D. Morrison

Petitioner Sam Walker filed a writ of mandamus with the Nevada Supreme Court to challenge a district court order which granted a motion by the State to unseal Walker’s criminal records. The State brought its motion pursuant to Nevada Revised Statute 179.295.