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Criminal Procedure

1992

Institution
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Articles 31 - 44 of 44

Full-Text Articles in Law

An Agency Cost Analysis Of The Sentencing Reform Act: Recalling The Virtues Of Delegating Complex Decisions, Kenneth G. Dau-Schmidt Jan 1992

An Agency Cost Analysis Of The Sentencing Reform Act: Recalling The Virtues Of Delegating Complex Decisions, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

For many outside the legal profession, the end of a legal case is the reading of the verdict. However, that is only the beginning for those being judged. One of the most significant and delicate tasks within the sphere of the legal system is that of sentencing those convicted. Because of the extreme personal impact that a judge's sentencing has on each individual, the most effective approach to creating guidelines for sentencing has been a hot topic of debate. Upon the birth of the Sentencing Reform Act of 1984, the system changed from one of standards to one of ...


State Ethics Rules And Federal Prosecutors: The Controversies Over The Anti-Contact And Subpoena Rules, Roger C. Cramton, Lisa K. Udell Jan 1992

State Ethics Rules And Federal Prosecutors: The Controversies Over The Anti-Contact And Subpoena Rules, Roger C. Cramton, Lisa K. Udell

Cornell Law Faculty Publications

No abstract provided.


The Reasonable Women And The Ordinary Man, Carol Sanger Jan 1992

The Reasonable Women And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony ...


Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz Jan 1992

Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz

Faculty Scholarship

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority ...


A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott Jan 1992

A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott

Faculty Scholarship

To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the ...


Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott Jan 1992

Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott

Faculty Scholarship

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives ...


"Reforming" Federal Habeas Corpus: The Cost Of Federalism; The Burden For Defense Counsel; And The Loss Of Innocence, J. Thomas Sullivan Jan 1992

"Reforming" Federal Habeas Corpus: The Cost Of Federalism; The Burden For Defense Counsel; And The Loss Of Innocence, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.


The Reasonable Woman And The Ordinary Man, Carol Sanger Jan 1992

The Reasonable Woman And The Ordinary Man, Carol Sanger

Faculty Scholarship

... Objections to the reasonable woman standard [for sexual harassment] combine doctrinal concerns with practical ones. The doctrinal question is something like, Whatever happened to gender neutrality? How are men supposed to know what conduct strikes their victims as intimidating, hostile, or offensive? After all, women are so sensitive – take Anita Hill. Why, as men often ask, can't women be more reasonable? ...

The answer is that at least in determining what behavior is sexually harassing, women are not like men. As many feminists have explained, women commonly experience as fearful what men find fun. ...


Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr. Jan 1992

Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr.

Faculty Scholarship

Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an ...


Real Jurors' Understanding Of The Law In Real Cases, Phoebe C. Ellsworth, Alan Reifman, Spencer M. Gusick Jan 1992

Real Jurors' Understanding Of The Law In Real Cases, Phoebe C. Ellsworth, Alan Reifman, Spencer M. Gusick

Articles

A survey of 224 Michigan citizens called for jury duty over a 2-month period was conducted to assess the jurors' comprehension of the law they had been given in the judges' instructions. Citizens who served as jurors were compared with a base line of those who were called for duty but not selected to serve, and with those who served on different kinds of cases. Consistent with previous studies of mock jurors, this study found that actual jurors understand fewer than half of the instructions they receive at trial. Subjects who received judges' instructions performed significantly better than uninstructed subjects ...


The New Prosecutors, Bennett L. Gershman Jan 1992

The New Prosecutors, Bennett L. Gershman

Pace Law Faculty Publications

The power and prestige of the American prosecutor have changed dramatically over the past twenty years. Three generalizations appropriately describe this change. First, prosecutors wield vastly more power than ever before. Second, prosecutors are more insulated from judicial control over their conduct. Third, prosecutors are increasingly immune to ethical restraints. Only the last point may provoke some controversy; the first two are easily documented, and generally accepted by the courts and commentators.

Part I of this article examines in greater detail this vast accretion of prosecutorial power, and explains how this transformation has resulted in a radical skewing of the ...


Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman Jan 1992

Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman

Articles

The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion ...


The Individualized-Consideration Principle And The Death Penalty As Cruel And Unusual Punishment, Ronald J. Mann Jan 1992

The Individualized-Consideration Principle And The Death Penalty As Cruel And Unusual Punishment, Ronald J. Mann

Faculty Scholarship

The Eighth Amendment to the United States Constitution prohibits infliction of "cruel and unusual punishments." The Supreme Court established the basic principles applying this amendment to the death penalty during a six-year period in the 1970's. First, in 1972, in Furman v. Georgia, the Court invalidated all then-existing death penalty statutes. Second, in 1976, in Gregg v. Georgia and its companions, the Court upheld some of the statutes promulgated in response to Furman but invalidated others. Finally, in 1978, in Lockett v. Ohio, the Court invalidated an Ohio statute because it failed to give the sentencer a sufficient opportunity ...


An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman Jan 1992

An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman

Articles

The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of ...