Law Commons^™

Summary Of Bergna V. State, 120 Nev. Adv. Rep. 92, Kristen T. Gallagher

Nevada Supreme Court Summaries

No abstract provided.

New Procedures Will Aid Accurate Eyewitnes Identification, Lisa Bruiniers, Craig Ching, Mark Goossens, Dan Taylor

Student Publications

No abstract provided.

Conceptualizing Blakely, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion …

Summary Of Butler V. State, 120 Nev. Adv. Op. 93, Sally L. Galati

Nevada Supreme Court Summaries

Defendant appealed his conviction on two counts of first-degree murder with the use of a deadly weapon, for which he received a sentence of death.

Whistle Blowing, Ben Depoorter, Jef De Mot

George Mason University School of Law Working Papers Series

For law enforcement purposes corruption and fraud are hard battles. Because of the highly secretive and premeditated nature of these crimes, prime witnesses are themselves often implicated in the fraudulent transaction. Promises of immunity and whistle blowing rewards are often required to resolve these information asymmetries. These insights have set a trend, both in scholarship and law enforcement practice, towards reward-based approaches (carrots), as an alternative or complement to punishment based deterrence (sticks). Applying the U.S. False Claims Act (FCA) as an analytical framework, we provide a critical review of the efficiency limitations of whistle blowing. More specifically, the formal …

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

George Mason University School of Law Working Papers Series

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

Search For Truth Or Reality Show?, Peter Keane

Publications

No abstract provided.

Screening, Plea Bargains And The Innocent Problem, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

Courts in common law countries reject plea-agreements only when the agreed upon sentence is seen as exceedingly lenient. This judicial intervention is designed to ensure that plea-bargaining does not undermine deterrence. Many legal scholars argue against this policy, claiming that courts should prohibit plea-bargaining all together. They argue that the plea-bargaining system increases the risk of wrongful convictions. Economists often criticize this judicial intervention as well, but for a different reason. Rather than advocating the abolition of plea-bargaining, many economists argue that the courts should accept all plea-agreements without review. They claim that plea-bargaining can help ensure an efficient use …

Summary Of Maiola V. State Of Nevada, 120 Nev. Adv. Op. 76, Clarke Walton

Nevada Supreme Court Summaries

Petition for rehearing in an appeal from a district court order denying a motion for return of property under NRS 179.085.

Section 5: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe

Faculty Scholarship

No abstract provided.

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

The Next Era Of Sentencing Reform, Steven L. Chanenson

Working Paper Series

This article charts a path for criminal sentencing in the wake of the Supreme Court’s recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O’Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that “Over 20 years of sentencing reform are all but lost.” All is most assuredly not lost. Blakely, properly viewed, is an opportunity – albeit a disruptive one – to re-think and improve our sentencing systems.

The Blakely court interpreted the Sixth Amendment to require that any fact, other than the fact of prior conviction, …

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna

Law & Economics Working Papers Archive: 2003-2009

Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

Sex, Shame, And The Law: An Economic Perspective On Megan's Law, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

This Article focuses on the question, how should policymakers aiming to minimize the cost of sanctioning utilize legal and nonlegal sanctions when designing a system of criminal sanctions. After presenting the general economic case for the use of nonlegal sanctions the article turns to present a model of shaming, which unlike existing models, incorporates the endogenous effects of legal and nonlegal sanctions. This model demonstrates that tailoring an efficient regime that combines legal and nonlegal sanctions might be more difficult than previously perceived by law and economics scholars. A specific case study presented in this article is of the current …

Hoist With Their Own Petard?, Steven L. Chanenson

Working Paper Series

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

The Legacy Of The Prompt Complaint Requirement, Corroboration Requirement, And Cautionary Instructions On Campus Sexual Assault, Michelle J. Anderson

Working Paper Series

No abstract provided.

Summary Of Allred V. State, 120 Nev. Adv. Op. 47, Hilary Barrett Muckleroy

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Bailey V. State, Scott Whittemore

Nevada Supreme Court Summaries

No abstract provided.

Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio

Cornell Law Faculty Publications

As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia to …

Capital Jurors As The Litmus Test Of Community Conscience For The Juvenile Death Penalty, Michael E. Antonio, Benjamin Fleury-Steiner, Valerie P. Hans, William J. Bowers

Cornell Law Faculty Publications

This fall, the United States Supreme Court will consider the constitutionality of the juvenile death penalty in Simmons v. Roper. The Eighth Amendment issue before the Court in Simmons will be whether the juvenile death penalty accords with the conscience of the community. This article presents evidence that bears directly on the conscience of the community in juvenile capital cases as revealed through extensive in-depth interviews with jurors who made the critical life-or-death decision in such cases. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with …

Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently …

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

All Faculty Scholarship

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …

Why It Is Essential To Teach About Mental Health Issues In Criminal Law (And A Primer On How To Do It), Richard E. Redding

Working Paper Series

Studies consistently show a high prevalence of mental disorders among criminal defendants. Forensic mental health issues thus arise frequently in the criminal justice system and are commonly encountered by prosecutors, defense attorneys, and judges—much more so than some criminal law doctrines (e.g., necessity, duress, impossibility) routinely taught in criminal law courses. Yet rarely are students taught about mental illness, how to represent mentally ill clients, adjudicative competence, the mental health needs of various offender groups and how these unmet needs may contribute to criminal behavior, or the use of mental health mitigation evidence at sentencing. If taught at all, such …

Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, a case that invalidated the Washington state sentencing guidelines and cast the validity of the Federal Sentencing Guidelines into grave doubt. On June 27, 2004, Professor Frank Bowman sent a memorandum to the United States Sentencing Commission analyzing the probable impact of Blakely on the federal guidelines and proposing a legislative modification of the Guidelines to render them compliant with Blakely. The proposal relies on the rule of McMillan v. Pennsylvania, 477 U.S. 79 (1986), and Harris v. United States, 536 U.S. 545 (2002), that post-conviction judicial findings …

Summary Of State V. Dist. Ct. (Epperson), 120 Nev. Adv. Op. 30, Angela Morrison

Nevada Supreme Court Summaries

The State sought a writ of mandamus or prohibition to prevent the district court from ordering the State, as part of discovery pursuant to a criminal case, to turn over a copy of a child pornography videotape to the defense counsel.

Summary Of Morgan V. State, 120 Nev. Adv.Op.No.25, Ronda Heilig

Nevada Supreme Court Summaries

A police officer’s arrest for misdemeanor traffic offenses is not arbitrary or unreasonable when the officer has “reasonable and probable grounds to believe the defendant will disregard written notice to appear in court.”2