Law Commons^™

"Benevolent Paternalism" Revisited, Daniel H. Foote

Articles

Nearly thirty years ago, in an article entitled “The Benevolent Paternalism of Japanese Criminal Justice” (Benevolent Paternalism), I sought to set out a model for the Japanese criminal justice system, the “benevolent paternalism” model. As the label reflects, I viewed the Japanese criminal justice system as consisting of two sides, a “paternalistic” side and a “benevolent” side. This essay begins with a short summary of the model; it then turns to an examination of major developments in the intervening three decades and considers whether the model remains relevant today.

Awakening The American Jury: Did The Killing Of George Floyd Alter Juror Deliberations Forever?, Tamara F. Lawson

Articles

In the summer of 2020, the witnessing of George Floyd's death triggered an outpouring of public expression far beyond other cases in modern times. While the experience led some to advocate for reform and participate in antiracism rallies, marches, and campaigns, it also forced many others into internal reflection, awareness, and awakening to the knowledge of a lived experience with police different from their own. The gruesome realities of the video were irreconcilable with those prior beliefs and did not comport with any moral or legal standards of dignity. Prior to witnessing George Floyd's death on video at the hands …

Tiptoeing Through The Landmines: The Evolution Of States' Legal Ethics Authority Regarding Representing Cannabis Clients, Karen Boxx

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No abstract provided.

Note: The Prisoner’S Dementia: Ethical And Legal Issues Regarding Dementia And Healthcare In Prison, David M. N. Garavito

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This Note will give an overview of the political and legal issues that lead to the underdiagnosing of dementias in prison populations and the problems associated with such underdiagnosing. Part I will discuss various forms of dementia that place the prison population at risk, providing general information about both pathology and symptomology of these disorders. Part II will provide an overview of the laws and policies surrounding the healthcare of prisoners and how these policies could lead to underdiagnosing problems specifically with neurological problems like dementia. Part III will describe how the symptomology of dementia, especially for those who remain …

Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes

Articles

No abstract provided.

Challenging The "Criminal Alien" Paradigm, Angélica Cházaro

Articles

Deportation of so-called “criminal aliens” has become the driving force in U.S. immigration enforcement. The Immigration Accountability Executive Actions of late 2014 provide the most recent example of this trend. Even for immigrants’ rights advocates, conventional wisdom holds that if deportations must occur, “criminal aliens” should be the first to go. A voluminous “crimmigration” scholarship notes the ever-growing entwinement of criminal and immigration enforcement, but does not challenge this fundamental premise.

This Article calls for a rejection of the formulation of the “criminal alien”—the figure used to increasingly justify the preservation and expansion of a harmful immigration regime. It thus …

Privacy, Public Disclosure, Police Body Cameras: Policy Splits, Mary D. Fan

Articles

When you call the police for help—or someone calls the police on you—do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives—after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure.

This Article sheds light on the balances …

Police Stories, Helen A. Anderson

Articles

As lawyers and judges know, the facts, and the stories created with those facts, make the law: “[A] case well stated is more than half argued.” The police narrative is one of the most common narratives in legal writing, simply because there are so many criminal cases, as well as numerous civil cases, involving police. For the most part, these narratives tell the familiar story of the hardworking, careful police officer in a challenging situation with dangerous criminals.

These narratives do much of the work of an appellate argument, just as Chief Justice Robert’s story about Officer Devlin makes the …

Economic Migration Gone Wrong: Trafficking In Persons Through The Lens Of Gender, Labor, And Globalization, Dana Raigrodski

Articles

This Article argues for an economic analysis of human trafficking which primarily looks at globalization, trade liberalization, and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.

Part I briefly examines the prevailing criminal law enforcement framework regarding human trafficking—both at the international level and in the United States—which stems out of viewing human trafficking as primarily a threat to global security and an underground industry of transnational criminal enterprises. It argues that while criminalization no doubt helped bring much needed attention (and resources) to human trafficking, the narrow criminal law …

Citizen Participation: Appraising The Saiban’In System, Daniel H. Foote

Articles

Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban'in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the …

Custom, General Principles And The Great Architect Cassese, Mary Fan

Articles

Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must study the …

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

Articles

Burglary began evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today, burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to …

Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan

Articles

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ("crimmigration'), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of "cooperative federalism" that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting …

Proving Corporate Criminal Liability For Negligence In Vessel Management And Operations: An Allision-Oil Spill Case Study, Craig H. Allen

Articles

Maritime policy analysts often invoke the "vessel safety net" metaphor to explain the independent, but overlapping, risk management roles and responsibilities of the vessel master and crew, owner and charterer, operating company, classification society, flag state and port states. Oil spills from the 2002 M/T Prestige break up off the coast of Galicia, Spain, the 2007 M/V Cosco Busan bridge allision in San Francisco Bay and the 2010 Deepwater Horizon debacle in the Gulf of Mexico, among others, demonstrate that any or all of the components of that safety net may come under scrutiny following a marine casualty, possibly leading …

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

Articles

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

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No abstract provided.

A Post-Race Equal Protection?, Mario L. Barnes, Erwin Chemerinsky, Trina Jones

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No abstract provided.

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

A Shift Toward Gender Equality In Prosecutions: Realizing Legitimate Enforcement Of Crimes Committed Against Women In Municipal And International Criminal Law, Tamara F. Lawson

Articles

A new era of law enforcement has emerged recognizing the importance of punishing gender-specific violence. This first wave of "gender-sensitive prosecutors" has changed the way crimes against women are handled in the criminal justice system. The enactment of gender neutralizing laws and policies has dramatically improved the enforcement of crimes against women and attempts to end the era of impunity. This Article addresses the changes in prosecutions and further considers international human rights treaties that require gender equality in law enforcement.

In criminal law, it is the willingness of a prosecutor to exercise his or her discretionary authority to file …

“Whites Only Tree,” Hanging Nooses, No Crime?: Limiting The Prosecutorial Veto For Hate Crimes In Louisiana And Across America, Tamara F. Lawson

Articles

News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent …