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Full-Text Articles in Law

Absolute Immunity: A License To Rape Justice At Will, Prentice L. White Dec 2010

Absolute Immunity: A License To Rape Justice At Will, Prentice L. White

Prentice L White

ABSOLUTE IMMUNITY: A LICENSE TO RAPE JUSTICE AT WILL BY PRENTICE L. WHITE We are all acquainted with the phrase the sanctity of marriage. We understand that the vows made by a couple at the wedding ceremony is sacrosanct, and if those vows are not taken seriously, or abused in any way, then the offending spouse will be penalized and evicted from the marital relationship. Likewise, justice should be handled in the same manner and with the same intensity. America prides itself on having the best legal system in the world. It broadcasts to all the surrounding nations that its ...


Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello Dec 2010

Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello

Adam Lamparello

No abstract provided.


Compensating The Adult Victim Of Childhood Incest: From Criminal To Constitutional Compensation, Limor Ezioni Dec 2010

Compensating The Adult Victim Of Childhood Incest: From Criminal To Constitutional Compensation, Limor Ezioni

Limor Ezioni

Adult victims of childhood incest face a multitude of problems when seeking redress from the courts: complex emotional and psychological issues, administrative difficulties in filing a complaint, the statute of limitation in civil suits, and inadequate financial compensation, to name just a few. Here we focus on the legal, moral, and philosophical dilemmas related to the question of proper punishment for the offender. Every legal system takes a different approach to this matter, often reflective of local legal/social norms. We believe that the Israeli experience can serve as springboard for research and debate on both the theoretical and practical ...


When Juveniles Face Questioning, Tamar R. Birckhead Nov 2010

When Juveniles Face Questioning, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that the age of a suspect should be considered when evaluating whether the questioning was custodial, thereby triggering the right to Miranda warnings.


Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman Nov 2010

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids as ...


Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber Nov 2010

Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber

Diane Webber

The paper examines current methods of preventive detention in the United States, that is the detaining of a suspect on home soil to prevent a terrorist attack. This paper looks at two recent events: the Fort Hood shootings and a preventive arrest in France, to consider problems in combating terrorist crimes on U.S. soil. I demonstrate that U.S. law as it now stands, with some limited exceptions, does not permit detention to forestall an anticipated domestic terrorist crime. After reviewing and evaluating the way in which France, Israel and the United Kingdom use forms of preventive detention to ...


Off The Roads & Out Of The Courts: Enter A Technology Fix For Drunk Driving, Nora J. Pasman-Green Oct 2010

Off The Roads & Out Of The Courts: Enter A Technology Fix For Drunk Driving, Nora J. Pasman-Green

Nora J. Pasman-Green

More than 1.4 million people are arrested annually for drunk driving, a crime that results in over 10,000 fatalities, more than 225,000 non-fatal injuries, and economic costs exceeding $50 billion. Drunk driving has become a major public health problem. This article traces development of the technology – the alcohol ignition interlock – which prevents drunk drivers from operating their vehicles. Ongoing research is underway to equip new automobiles with alcohol detection devices as standard equipment. The article explores the possibility of eliminating drunk driving once all vehicles are manufactured with pre-market interlocks installed. The article examines the impact of ...


Towards A Gender-Inclusive Definition Of Child Soldiers: The Prosecutor V. Thomas Lubanga Dyilo, Kristin M. Gallagher Oct 2010

Towards A Gender-Inclusive Definition Of Child Soldiers: The Prosecutor V. Thomas Lubanga Dyilo, Kristin M. Gallagher

Kristin M Gallagher

The trial of Thomas Lubanga Dyilo (“Thomas Lubanga”) will set international precedent for crimes related to child soldiers. As it is the first trial before the International Criminal Court (“ICC” or the Court), the Court will be setting a standard for interpreting what it means to conscript, enlist or use child soldiers actively in combat. This paper argues that the trial of Thomas Lubanga Dyilo currently before the International Criminal Court represents an opportunity for a precedent-setting decision regarding the use of child soldiers. It also argues for an interpretation of the law that recognizes the changing face of war ...


Scent Identification In Criminal Investigations And Prosecutions: New Protocol Designs Improve Forensic Reliability, John Ensminger Oct 2010

Scent Identification In Criminal Investigations And Prosecutions: New Protocol Designs Improve Forensic Reliability, John Ensminger

John Ensminger

Scent lineups are a powerful tool in the investigation of crimes. With proper procedures, both forensic and judicial, scent lineups can be valuable evidence for a jury to consider. Unfortunately, many courts have been willing to admit poorly conducted procedures, even if giving lip service to the fact that the scent lineup was deficient by saying that its admission was harmless error. The tendency of some courts to view scent lineups as an extension of scent tracking has resulted in admission of scent lineup evidence under inappropriate standards. Tracking cases have set foundational requirements from long-held social and judicial assumptions ...


The Crime Of Genocide In The New Turkish Penal Code, Mahmut Koca Oct 2010

The Crime Of Genocide In The New Turkish Penal Code, Mahmut Koca

Mahmut Koca

In this article, the crime of genocide which is defined in the Art. 76 of Turkish Penal Code, is examined. Genocide has been considered as the most serious crime which concerns the whole mankind by international law. Despite this character of the crime, humanity has witnessed the incidents of genocide in Germany, Bosnia and Ruanda in the last century. The incidents experienced during the WWII had forced the international community to act jointly, hence the United Nations General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide” on December 9, 1948. On the other hand ...


"One Free Swerve”?: Requiring Police To Corroborate Anonymous Tips In Order To Establish Reasonable Suspicion For Warrantless Seizure Of Alleged Drunk Drivers, Michael B. Kunz Sep 2010

"One Free Swerve”?: Requiring Police To Corroborate Anonymous Tips In Order To Establish Reasonable Suspicion For Warrantless Seizure Of Alleged Drunk Drivers, Michael B. Kunz

Michael B Kunz

While the Supreme Court holds that warrantless searches and seizures are presumptively unreasonable, it has carved out exceptions to the warrant requirement that provide law enforcement officials flexibility with which to conduct their day-to-day investigations. However, in Florida v. J.L. the Court recognized a limit to one such exception by holding that reasonable suspicion cannot be based exclusively on a bare-boned anonymous tip. Nevertheless, the Court complicated this rule by hypothesizing that police might be able to act on a lesser showing of reliability when an anonymous tip alleges a sufficiently great danger. Relying on this abstract idea, a ...


U.S. International Narcotics Extradition Cases: Legal Trends And Developments With Implications For U.S.-China Drug Enforcement Activities, David Aronofsky, Jie Qin Sep 2010

U.S. International Narcotics Extradition Cases: Legal Trends And Developments With Implications For U.S.-China Drug Enforcement Activities, David Aronofsky, Jie Qin

David Aronofsky

Paper Abstract Professor Morgan correctly notes that “extradition, as opposed to domestic prosecution, has become the law enforcement vehicle of choice for governments willing to engage with the United States in the anti-drug campaign.” This Paper will review U.S. international drug trafficking extradition cases with the dual objectives of (a) identifying contemporary legal issues trends and developments; and (b) analyzing how these issues, trends and developments might reasonably apply to future U.S.-China cooperation in international drug enforcement efforts. Special attention will be paid to the recent Valencia-Trujillo decision as an example of why extradition treaties may be ...


The Temporal Scope Of Command Responsibility Revisited: Why Commanders Have A Duty To Prevent Crimes Committed After The Cessation Of Effective Control, Joakim Dungel, Shannon Ghadiri Sep 2010

The Temporal Scope Of Command Responsibility Revisited: Why Commanders Have A Duty To Prevent Crimes Committed After The Cessation Of Effective Control, Joakim Dungel, Shannon Ghadiri

Joakim P Dungel

Must an outgoing commander prevent his troops from criminal activity even if their crimes will be committed after he ceased to have effective control over them? This question has received scant judicial or academic discussion. Yet, the question is not simply a hypothetical one. In the Sesay et al. trial judgment, the accused Morris Kallon incurred command responsibility for his failure to prevent enslavement, which continued until December 1998, even though his effective control over the culpable troops ended in August 1998. While the trial chamber provided little reasoning for its conclusion, this paper endeavours to fill that gap in ...


Addressing The Special Problems Of Mentally Ill Prisoners: A Small Piece Of The Solution To Our Nation's Prison Crisis, Michael Vitiello Sep 2010

Addressing The Special Problems Of Mentally Ill Prisoners: A Small Piece Of The Solution To Our Nation's Prison Crisis, Michael Vitiello

Michael Vitiello

After years of neglect, policymakers must confront a crisis in our prisons created by the increasing number of mentally ill prisoners. Mentally ill prisoners are both vulnerable and troublesome. Apart from their special needs, they are an increasing segment of the prison population. Their numbers have risen roughly in proportion with the release of the mentally ill from mental hospitals and the closing of those institutions. As states look for ways to reduce prison costs, meaningful reform may be in the air. That may allow a reexamination of policies that have led to the increase in mentally ill-prisoners. But if ...


Autobots, Decepticons, And Panopticons: The Transformative Nature Of Gps Technology And The Fourth Amendment, Vivek Kothari Sep 2010

Autobots, Decepticons, And Panopticons: The Transformative Nature Of Gps Technology And The Fourth Amendment, Vivek Kothari

Vivek Kothari

Jeremy Bentham conceived of and constructed a prison designed to allow the guards to observe the prisoners without the prisoners knowledge of whether or not they are being watched. He called his prison a panopticon. Today, law enforcement uses GPS technology as a low cost, precise alternative to traditional surveillance. They attach a GPS device to a vehicle to track and chronicle a vehicle’s, and therefore an individual’s, movements for days, weeks, and even months. The result is to create a panopticon where those watched are not incarcerated criminals, but everyday citizens. The Fourth Amendment’s protections against ...


Can Cia Interrogators Relying Upon Government Counsel Advice Be Prosecuted For Torture?, Adam M. Hochroth Sep 2010

Can Cia Interrogators Relying Upon Government Counsel Advice Be Prosecuted For Torture?, Adam M. Hochroth

Adam M Hochroth

In the spring of 2002, the CIA sought advice from the Office of Legal Counsel (OLC) regarding an interrogation program for high-level al Qaeda detainees. The proposed program included the use of techniques such as walling, stress positions, confinement, sleep deprivation and waterboarding. On August 1, 2002, the OLC provided two memoranda of advice to the CIA on the lawfulness of the proposed program and the specific techniques intended. The OLC advised that the program and the techniques were lawful and did not constitute torture within the meaning of the Torture Statute, 18 U.S.C. §§2340–2340A. This article ...


The Pinkerton Problem, Bruce A. Antkowiak Sep 2010

The Pinkerton Problem, Bruce A. Antkowiak

Bruce A Antkowiak

Pinkerton is a longstanding principle of criminal law that holds a conspirator liable for the substantive crimes of his confederates as long as they were committed during the course of and in furtherance of the conspiracy, and as long as they were objectively and reasonably foreseeable to a defendant. This leads to liability being imposed on individuals who did not personally have the mens rea required to commit the crime for which they are sentenced. The article argues that the use of such conspirator liability rules in many jurisdictions (federal and state) violates both due process and separation of powers ...


Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller Sep 2010

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Colin Miller

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases ...


The Image Of The Attorney: The Character Of Attorney Randolph Mason In Three Books By Melville Davisson Post, Patricia J. Brown Sep 2010

The Image Of The Attorney: The Character Of Attorney Randolph Mason In Three Books By Melville Davisson Post, Patricia J. Brown

Patricia J Brown

Summary In 1896 a young attorney practicing in West Virginia, Melville Davisson Post, wrote a book entitled The Strange Schemes of Randolph Mason. His stated mission in this book was to invent a new type of story to compete with the currently popular genre of the detective story. His stories would show how a criminal, even if detected, could escape punishment by using loopholes and schemes available in the law. The criminal, not always able to find these loopholes himself, would be guided by a legal misanthrope, an attorney named Randolph Mason. Post wrote two books using this motif and ...


Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller Sep 2010

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Colin Miller

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases ...


Confucian Influence On The Criminal Laws Of Korea And Japan, Woo-Jung Jon Sep 2010

Confucian Influence On The Criminal Laws Of Korea And Japan, Woo-Jung Jon

Woo-Jung Jon

In Korean Criminal Law there are thirteen provisions influenced by Confucian filial piety, imposing heavier punishment on crimes committed against lineal ascendants. The Japanese Criminal Law also had such provisions, but abolished them. This article examines the present and the past of the Confucian influence on the Criminal Laws of Korea and Japan. Chapter II investigates the historical background of the development of Confucianism in Korea and Japan, and the conflicts between traditional Confucianism and newly transplanted Western legal systems. Chapter III analyzes the provisions of the Criminal Laws of Japan and Korea related with aggravated punishment on the crime ...


Using Cognitive Neuroscience To Provide A Procedure For The Involuntary Commitment Of Violent Criminals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello Sep 2010

Using Cognitive Neuroscience To Provide A Procedure For The Involuntary Commitment Of Violent Criminals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello

Adam Lamparello

No abstract provided.


The Failure Of Consent, Michal Buchhandler-Raphael Sep 2010

The Failure Of Consent, Michal Buchhandler-Raphael

michal buchhandler-raphael

What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms. This Article argues that while rape law reform has accomplished significant changes ...


The Place Of Repentance In Retributive Sentencing, Itay E. Lipschits, Rinat Kitai-Sangero Aug 2010

The Place Of Repentance In Retributive Sentencing, Itay E. Lipschits, Rinat Kitai-Sangero

itay E. Lipschits

ABSTRACT Repentance touches many aspects of life. It is basic to human relations. The article sets forth the normative reasons for taking repentance into account in the frame of criminal sentencing. Change that takes place in people should be recognized as a relevant measure for society's attitude toward them. The web of social relations among offender, victim, and society needs to permeate the criminal justice system and the considerations of punishment that it includes. Whoever wants to disconnect between the prevailing social reality, which attributes great interpersonal importance to repentance and forgiveness, and the question of how a person ...


Can Psychology Serve As A “Security Factor”? - Incest Survivors As A Test Case Of The Connection Between Psychology And The Criminal-Tort Reality, Limor Ezioni Aug 2010

Can Psychology Serve As A “Security Factor”? - Incest Survivors As A Test Case Of The Connection Between Psychology And The Criminal-Tort Reality, Limor Ezioni

Limor Ezioni

Today there is a general consensus that victims of crime benefit from psychotherapy, particularly when they have experienced emotional trauma. While legal systems in previous eras did not recognize the emotional difficulties borne by the victims, today they do so almost routinely. It has widely been assumed this understanding of what the victims of serious crimes experience would translate into important legal benefits as well.

We test this assumption through an analysis of the test case of female victims of childhood incest. Contemporary psychology casts these women in a radically new light, one which has brought about legal recognition of ...


War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel Aug 2010

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest ...


Accomplice Liability: American Jurisprudence Injecting Mens Rea Under False Hopes Of Criminal Deterrence, Andrew J. Sickmann Aug 2010

Accomplice Liability: American Jurisprudence Injecting Mens Rea Under False Hopes Of Criminal Deterrence, Andrew J. Sickmann

Andrew J Sickmann

Relatively little scholarly attention has been given to the doctrine of accomplice liability. To the average person this is an obscure doctrine that most do not understand. This article examines early accomplice law before State statutes began to shift towards unjust simplicity. The article will also analyze accomplice liability in relation to intent and the ‘natural and probable consequences’ doctrine, as well as accomplice law and its application in four different states. Finally, this article offers insight into how accomplice liability should be treated pursuant to principles of fairness, judiciousness, and pertinence in today’s society.


Disabling Able: Why The Virginia Supreme Court Must Address Recent Changes In Narcotics Distribution Law, Kevin R. Pettrey Aug 2010

Disabling Able: Why The Virginia Supreme Court Must Address Recent Changes In Narcotics Distribution Law, Kevin R. Pettrey

Kevin R Pettrey

The Virginia General Assembly has proscribed distributing narcotics within the Commonwealth. In order to further deter this illegal activity, increased punishments for repeat offenders have been established. However, what a charging document must allege changed in 2009 but these technical requirements are not always complied with. Prior to 2009, Virginia Code § 18.2-248 only required that a conviction be a “second or subsequent conviction” in order to qualify a defendant for a heightened sentence. In 2009, the Virginia General Assembly passed HB 2362 which required charging documents to allege that a defendant was convicted of violating Virginia Code § 18.2-248 ...


State V Fowler: North Carolina Dwi Procedure Considered, Jeffrey Martin Aug 2010

State V Fowler: North Carolina Dwi Procedure Considered, Jeffrey Martin

Jeffrey Martin

This case has its origin in attempts by the government of North Carolina to reduce drunk driving fatalities and improve road safety.


From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale Aug 2010

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people ...