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Full-Text Articles in Law
Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud
Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud
Articles
This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.
The Progressive Love Affair With The Carceral State, Kate Levine
The Progressive Love Affair With The Carceral State, Kate Levine
Articles
A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.
Entitlement To Punishment, Kyron J. Huigens
Entitlement To Punishment, Kyron J. Huigens
Articles
This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.
An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …
Prosecutorial Declination Statements, Jessica A. Roth
Prosecutorial Declination Statements, Jessica A. Roth
Articles
This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …
The Culture Of Misdemeanor Courts, Jessica A. Roth
The Culture Of Misdemeanor Courts, Jessica A. Roth
Articles
The misdemeanor courts that preside over the majority of criminal cases in the United States represent the “front porch” of our criminal justice system. These courts vary in myriad ways, including size, structure, and method of judicial appointment. Each also has its own culture – i.e., a settled way of doing things that reflects deeper assumptions about the court’s mission and its role in the community – which can assist or impede desired policy reforms. This Article, written for a Symposium issue of the Hofstra Law Review, draws upon the insights of organizational culture theory to explore how leaders can …
The Necessity Of The Good Person Prosecutor, Jessica A. Roth
The Necessity Of The Good Person Prosecutor, Jessica A. Roth
Articles
In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a good prosecutor.
Alternative Elements, Jessica A. Roth
Alternative Elements, Jessica A. Roth
Articles
The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Articles
No abstract provided.
The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward Stein
The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward Stein
Articles
Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.
Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld
Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld
Articles
By monitoring and investigating errors in the criminal justice system, innocence commissions could help remedy systemic defects that bring about wrongful convictions.
Solving The Apprendi Puzzle, Kyron Huigens
Indirect Infringement And Counterfeiting: Remedies Available Against Those Who Knowingly Rent To Counterfeiters, Barbara Kolsun, Jonathan Bayer
Indirect Infringement And Counterfeiting: Remedies Available Against Those Who Knowingly Rent To Counterfeiters, Barbara Kolsun, Jonathan Bayer
Articles
No abstract provided.
Structures Of Environmental Criminal Enforcement, Michael Herz
Structures Of Environmental Criminal Enforcement, Michael Herz
Articles
No abstract provided.
Virtue And Inculpation, Kyron J. Huigens
Virtue And Inculpation, Kyron J. Huigens
Articles
This article sets forth a general theory of the justification of legal punishment based on virtue ethics and republican political theory. Criminal law serves not only to deter and take retribution, but also to inculcate virtue. This theory explains why, for example, people do not consciously abide by law. They just do, because they have no desire to do things that are contrary to the criminal law. This conception of virtue as well-ordered desire is distinctively Aristotelian. The political justification for inculcating virtue by means of criminal law is the classic republican conception of government as being devoted specifically to …
Jewish Law And The State’S Authority To Punish Crime, J. David Bleich
Jewish Law And The State’S Authority To Punish Crime, J. David Bleich
Articles
No abstract provided.
The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing
The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing
Articles
No abstract provided.
Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam
Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam
Articles
This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.
Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing
Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing
Articles
This Article accepts and will develop the Court's isomorphic theory of immunity and privilege, and will show why Portash is nonetheless correct in result. A case for a broadened view of the privilege, partially because of the availability of testimonial immunity, will be made. Apftlbaum will be shown to be incorrect in result. This Article will also analyze the problem of immunized testimony and perjury by inconsistent statement, a problem faced once by the Court but left unresolved. Finally, this Article will discuss the constitutional requirements of an immunity statute, and consider an immunity case presently pending before the Supreme …
Faces Without Features: The Surface Validity Of Criminal Inferences, Peter Lushing
Faces Without Features: The Surface Validity Of Criminal Inferences, Peter Lushing
Articles
This article will offer nonempirical grounds to show that instructed inferences operate as the dissenters believe, at least when the instruction does not explicitly refer to the evidence at trial, but to occurrences in general.