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Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell Sep 2018

Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell

Utah Law Faculty Scholarship

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in ...


Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz May 2017

Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz

Law School Blogs

No abstract provided.


Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore Mar 2017

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.


Trending @ Rwu Law: Dean Yelnosky's Post: What The Tragedy In Orlando Means For Rwu Law 6/17/2016, Michael Yelnosky Jun 2016

Trending @ Rwu Law: Dean Yelnosky's Post: What The Tragedy In Orlando Means For Rwu Law 6/17/2016, Michael Yelnosky

Law School Blogs

No abstract provided.


Newsroom: Nason '05 Cited By U.S. Supreme Court, Roger Williams University School Of Law Jun 2015

Newsroom: Nason '05 Cited By U.S. Supreme Court, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


The Opening Of American Law: Neoclassical Legal Thought, 1870-1970: Epilogue, Herbert J. Hovenkamp Feb 2015

The Opening Of American Law: Neoclassical Legal Thought, 1870-1970: Epilogue, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of ...


What Is Criminal Restitution?, Cortney E. Lollar Nov 2014

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a ...


Juries And The Criminal Constitution, Meghan J. Ryan Jan 2014

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Scholarship

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges ...


The Illusory Eighth Amendment, John F. Stinneford Dec 2013

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules ...


Punishment Without Culpability, John F. Stinneford Jul 2012

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor ...


A Brave New World Of Stop And Frisk, Ronald J. Bacigal Oct 2011

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters ...


Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini Jan 2009

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

School of Law Faculty Publications and Presentations

No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This Essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution. Part I highlights certain features of the statute and explores the rationale underlying its enactment. Part II discusses the only published decision upholding the practice of taking of DNA samples from certain ...


Tabloid Constitutionalism: How A Bill Doesn't Become A Law, Brian C. Kalt Jan 2008

Tabloid Constitutionalism: How A Bill Doesn't Become A Law, Brian C. Kalt

Faculty Publications

No abstract provided.


The Perfect Crime, Brian C. Kalt Jan 2005

The Perfect Crime, Brian C. Kalt

Faculty Publications

No abstract provided.


International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant Jan 2004

International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.


Exploiting Trauma: The So-Called Victim's Rights Amendment, Lynne Henderson Jan 2001

Exploiting Trauma: The So-Called Victim's Rights Amendment, Lynne Henderson

Scholarly Works

No abstract provided.


High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck Oct 1999

High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck

Faculty Publications

This Article had its genesis in a statement by the authors submitted to the House Judiciary Committee during its proceedings regarding the impeachment of President Clinton. This final much expanded version appears after the conclusion of the Clinton impeachment proceedings in the Senate, and it is certainly informed by the course those proceedings took. Strictly speaking, however, this is not an article “about” the Clinton impeachment. Although this Article draws some conclusions from the treatment by the House and Senate of the fundamental allegations against President Clinton, it does not address in detail the specific facts underlying those allegations. The ...


Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn Jan 1998

Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn

Scholarly Works

No abstract provided.


The Underfederalization Of Crime, A. Kimberley Dayton Jan 1997

The Underfederalization Of Crime, A. Kimberley Dayton

Faculty Scholarship

This article contends that judicial and academic complaints about the overfederalization of crime largely have matters backwards. The image of a runaway national government increasingly taking away the enforcement of the criminal law from the States is essentially false. The available evidence indicates that the national government's share in the enforcement of criminal law has been actually diminishing for more than the last half century. The national government does have concurrent authority over a greater range of criminal activity now, including much violent street crime. But, contrary to Lopez and the conventional wisdom it embraces, this expanded authority does ...


The Gallows To The Gurney: Analyzing The (Un)Constitutionality Of The Methods Of Execution, Roberta M. Harding Oct 1996

The Gallows To The Gurney: Analyzing The (Un)Constitutionality Of The Methods Of Execution, Roberta M. Harding

Law Faculty Scholarly Articles

The objective of this article is to examine this issue by formulating an analytical framework for determining when methods of execution constitute cruel and unusual punishment. This task is accomplished Part II by briefly tracing the historical evolution of the Eighth Amendment's Cruel and Unusual Punishments Clause. Part III examines the prohibition's core components. Part IV reviews the traditional and modem interpretations of cruel and unusual punishment as applied to the methods of capital punishment, and assesses the standard with which to determine whether a specific method of execution comports with the present interpretation of cruel and unusual ...


Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West Jan 1990

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a ...


Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne Jan 1989

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Scholarship

This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.


Drugs And Small Arms: Can Law Stop The Traffic?, Christopher L. Blakesley Jan 1987

Drugs And Small Arms: Can Law Stop The Traffic?, Christopher L. Blakesley

Scholarly Works

Professor Blakesley presides over this panel discussion on laws combating the illegal importation of drugs and small arms, and their implications for international and domestic law.


A Suggestion Concerning The Law Of Inter-State Extradition, Edwin F. Conely Jan 1892

A Suggestion Concerning The Law Of Inter-State Extradition, Edwin F. Conely

Articles

While yet the nation was forming-indeed as early as 1643-the impolicy of the colonies' suffering themselves to become asylums for criminal refugees was seen and appreciated by the public men of the time. But, though continued efforts were made in the right direction and much was accomplished, the rendition of fugitives from justice remained, either legally or practically, a matter of comity for nearly a century and a half, or until the adoption of the Constitution of the United States. Then, made mandatory by the organic law of the Nation, inter-state extradition ceased to be subject to State control or ...


The Element Of Locality In The Law Of Criminal Jurisdiction, Henry W. Rogers Jan 1889

The Element Of Locality In The Law Of Criminal Jurisdiction, Henry W. Rogers

Articles

THE Federal Courts have no common law criminal jurisdiction. The question was raised in the United States Circuit Court for the District of Pennsylvania, in 1798, in United States v. Worrall, 2 Dallas, 384, and the Court was equally divided in opinion. Iii 1818, Mr. Justice STORY, in United States v. Coolidge, 1 Gallison, 488, decided that there were common law offences against the United States. But this, as we shall see, was overruled by the Supreme Court. As early as 1807, Chief Justice MARSHALL, in Ex parte .Bollman, 4 Cranch, 75, had said, "This Court disclaims all jurisdiction not ...


The Surrender Of Fugitives From Justice, Thomas M. Cooley Dec 1878

The Surrender Of Fugitives From Justice, Thomas M. Cooley

Articles

The Constitution of the United States provides that "a person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." The act of Congress of 1793 imposed the duty of surrender upon the executive of the State in which the fugitive should be found, and provided the manner in which the charge of crime should be authenticated for his action. It ...


Extradition, Thomas M. Cooley Dec 1875

Extradition, Thomas M. Cooley

Articles

The policy of returning for trial and punishment the criminal of one country who has escaped to another, is not less manifest than its justice. It would seem, therefore, that there ought to be no great difficulty in agreeing upon the proper international regulations for the purpose. This, ho:wever, has until recently been practically an impossibility. While the leading nations of Christendom were engaged for a very large proportion of the time in inflicting upon each other all the mischief possible, it was not to be expected that they would be solicitous to assist in the enforcement of their ...