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Articles 1 - 30 of 48
Full-Text Articles in Law
The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow
The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow
Articles
Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs. Although …
May The State Punish What It May Not Prevent?, Gabriel S. Mendlow
May The State Punish What It May Not Prevent?, Gabriel S. Mendlow
Articles
In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …
The Elusive Object Of Punishment, Gabriel S. Mendlow
The Elusive Object Of Punishment, Gabriel S. Mendlow
Articles
All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; …
Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow
Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow
Articles
A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …
Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow
Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow
Articles
It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. …
Stock Market Manipulation And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel Rauterberg
Stock Market Manipulation And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel Rauterberg
Articles
More than eighty years after federal law first addressed stock market manipulation, the federal courts remain fractured by disagreement and confusion concerning manipulation law's most foundational issues. There remains, for example, a sharp split among the federal circuits concerning manipulation law's central question: Whether trading activity alone can ever be considered illegal manipulation under federal law? Academics have been similarly confused-economists and legal scholars cannot agree on whether manipulation is even possible in principle, let alone on how to properly address it in practice.
How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad
How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad
Articles
Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: • United States Abstains on Security Council Resolution Criticizing Israeli Settlements • United States Sanctions Russian Individuals and Entities After Accusing Russian Government of Using Hacking to Interfere with U.S. Election Process; Congressional Committees and Intelligence and Law Enforcement Agencies Continue to Investigate President Trump’s Connections to Russian Officials • Second Circuit Overturns $655 Million Jury Verdict Against Palestine Liberation Organization and Palestinian Authority • New Legislation Seeks to Confirm Immunity of Artwork and Facilitate Cultural Exchange • United States Confronts China over Seizure of Unmanned Drone in the South China Sea • International Criminal Court Prosecutor …
How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley
How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley
Articles
Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual …
Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott
Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott
Articles
Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these …
Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein
Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein
Articles
In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. The organizer of the symposium, Professor Anita Bernstein, did not afford an opportunity for Restatement reporters to comment on the articles. The organizer did invite the Director of the American Law Institute, Lance Liebman, to contribute an essay commenting on the symposium as a whole. Liebman’s essay—unintentionally no doubt—misstated the position that we took in formulating the slayer rule for the Restatement (Third) of Property: Wills and Other Donative Transfers. Liebman’s misstatement—that we recommended that the Institute adopt a rule allowing a murderer to inherit …
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Articles
In January 1991, just four weeks after joining the Justice Department’sEnvironmental Crimes Section as an entry-level attorney, I traveled to NewOrleans to attend an environmental enforcement conference. The conferencewas attended by hundreds of criminal prosecutors and civil attorneys from theJustice Department, as well as enforcement officials from the EnvironmentalProtection Agency (“EPA”). It was a propitious time for environmental protec-tion efforts in the United States. Less than two months earlier, President GeorgeH. W. Bush had signed the Clean Air Act Amendments of 1990, culminating aremarkable twenty-year period that created the modern environmental law sys-tem in the United States. My new office, …
Racial Disparity In Federal Criminal Sentences, M. Marit Rehavi, Sonja B. Starr
Racial Disparity In Federal Criminal Sentences, M. Marit Rehavi, Sonja B. Starr
Articles
Using rich data linking federal cases from arrest through to sentencing, we find that initial case and defendant characteristics, including arrest offense and criminal history, can explain most of the large raw racial disparity in federal sentences, but significant gaps remain. Across the distribution, blacks receive sentences that are almost 10 percent longer than those of comparable whites arrested for the same crimes. Most of this disparity can be explained by prosecutors’ initial charging decisions, particularly the filing of charges carrying mandatory minimum sentences. Ceteris paribus, the odds of black arrestees facing such a charge are 1.75 times higher than …
Sex Offender Law And The Geography Of Victimization, Amanda Y. Agan, J. J. Prescott
Sex Offender Law And The Geography Of Victimization, Amanda Y. Agan, J. J. Prescott
Articles
Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised—at least in part—on the idea that sex offender proximity and victimization risk are positively correlated. We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs. Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live. To …
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Articles
Prosecutorial discretion exists throughout the criminal justice system but plays a particularly significant role for environmental crime. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. As a result, there has been uncertainty about which environmental violations will result in criminal enforcement and persistent claims about the overcriminalization of environmental violations. To address these concerns — and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme — I have proposed that prosecutors should reserve criminal enforcement for violations that involve one or more of the following …
Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci
Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci
Articles
Child maltreatment (CM) reporting laws and policies have an important role in the identification, treatment, and prevention of CM in the United States (U.S. Department of Health and Human Services [US DHHS], 2012). Abuse by a member of the clergy “is not only a personal and emotional betrayal, but [also] a spiritual betrayal, with secrecy amplified by the unprecedented and systemic cover-up committed by the Church hierarchy” (Coyne, 2011, p. 15). Recent controversies have resulted in the consideration of changes in mandated U.S. reporting laws that include increasing requirements for clergy and extension to additional professions (Freeh, Sporkin, & Sullivan, …
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
Articles
The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and …
Interpersonal Power In The Criminal System, Kimberly A. Thomas
Interpersonal Power In The Criminal System, Kimberly A. Thomas
Articles
This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken. This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind the …
State Bystander Responsibility, Monica Hakimi
State Bystander Responsibility, Monica Hakimi
Articles
International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework …
Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran
Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran
Articles
In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his …
Prosecuting Worker Endangerment: The Need For Stronger Criminal Penalties For Violations Of The Occupational Safety And Health Act, David M. Uhlmann
Prosecuting Worker Endangerment: The Need For Stronger Criminal Penalties For Violations Of The Occupational Safety And Health Act, David M. Uhlmann
Articles
A recent spate of construction deaths in New York City, similar incidents in Las Vegas, and scores of fatalities in recent years at mines and industrial facilities across the country have highlighted the need for greater commitment to worker safety in the United States and stronger penalties for violators of the worker safety laws. Approximately 6,000 workers are killed on the job each year1—and thousands more suffer grievous injuries—yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent. In recent years, most of the criminal prosecutions for worker safety violations have been brought by the …
Jesting Pilate, Carl E. Schneider
Jesting Pilate, Carl E. Schneider
Articles
I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs. CNN.com: …
Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort
Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort
Articles
Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …
Exonerations In The United States 1989 Through 2003, Samuel R. Gross, Kriten Jacoby, Daniel J. Matheson, Nicholas Montgomery, Sujata Patil
Exonerations In The United States 1989 Through 2003, Samuel R. Gross, Kriten Jacoby, Daniel J. Matheson, Nicholas Montgomery, Sujata Patil
Articles
On August 14, 1989, the Cook County Circuit Court in Chicago, Illinois, vacated Gary Dotson's 1979 rape conviction and dismissed the charges.1 Mr. Dotson-who had spent ten years in and out of prison and on parole for this conviction-was not the first innocent prisoner to be exonerated and released in America. But his case was a breakthrough nonetheless: he was the first who was cleared by DNA identification technology. It was the beginning of a revolution in the American criminal justice system. Until then, exonerations of falsely convicted defendants were seen as aberrational. Since 1989, these once-rare events have become …
Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Bames
Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Bames
Articles
Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today... the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that."4 Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It never has been con-doned …
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Articles
For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …
Framing Refugee Protection In The New World Disorder, James C. Hathaway, Colin J. Harvey
Framing Refugee Protection In The New World Disorder, James C. Hathaway, Colin J. Harvey
Articles
A number of jurisdictions have fastened onto a "solution" that appears to reconcile respect for refugee law with the determination of states to rid themselves quickly of potentially violent asylum seekers. Courts in these states have been persuaded that a person who has committed or facilitated acts of violence may lawfully be denied a refugee status hearing under a clause of the Refugee Convention that authorizes the automatic exclusion of persons whom the government reasonably believes are international or extraditable criminals. Refugee law so interpreted is reconcilable with even fairly blunt measures for the exclusion of violent asylum seekers. In …
Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross
Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross
Articles
In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.
Justification By Faith, Carl E. Schneider
Justification By Faith, Carl E. Schneider
Articles
In June 1997 a sixteen-year-old girl named Shannon Nixon began to feel ill. Her parents belonged to the Faith Tabernacle Church, one of a number of American sects which believe that illness should be treated spiritually rather than medically. Accordingly, the Nixons prayed for Shannon and took her to be anointed at their church. Shannon reported that she felt better and that the spiritual treatment had gained her her victory-her recovery. Before long, however, Shannon again felt ill. She became weaker and weaker and then fell into a coma. A few hours later she died. An autopsy revealed that she …
Hard Cases, Carl E. Schneider
Hard Cases, Carl E. Schneider
Articles
Robert Latimer was born in 1953 on a farm on the prairies of Saskatchewan and grew up to own a 1,280-acre farm. In 1980 he married, and that year Tracy, the first of four children, was born. During her birth, Tracy's brain was terribly damaged by lack of oxygen, and severe cerebral palsy ensued. By 1993 Tracy could laugh, smile, and cry, and she could recognize her parents and her siblings. But she could not understand her own name or even simple words like "yes" and "no." She could not swallow well and would so often vomit her parents kept …