Law Commons^™

The Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, Alan F. Williams

Alan F. Williams

No abstract provided.

The Greatest Legal Movie Of All Time: Proclaiming The Real Winner, Grant H. Morris

Grant H Morris

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. …

Protecting The Ivory Tower: Sensible Security Or Invasion Of Privacy?, Stephen D. Lichtenstein

Jonathan J. Darrow

Millions of students are enrolled in colleges and universities in the United States and abroad. While universities are not insurers of the safety of their students, faculty, staff or others in their community, university campuses are generally safe when compared to urban environments. However, tragic and infamous acts of campus violence including the rape and murder of Jeanne Clery at Lehigh University, the infamous 2007 Virginia Tech tragedy resulting in the death of thirty-three and, more recently, the alleged murders of three colleagues by faculty member Amy Bishop provide evidence and anecdotes that the risk of campus violence remains high. …

Harnessing Local Variations In Federal Sentencing To Increase The System's Moral Credibility, Adam Richardson

Adam Richardson

This Essay attempts to provide an all-things-considered approach to justifying local sentencing variations in the federal system. Instead of trying to eliminate those disparities, this Essay contends that the federal sentencing system should embrace regional variations to increase the moral credibility of the system at the local level. To do this, it argues for the creation of regional sentencing commissions (one for each federal circuit), which would promulgate their own, regional sentencing guidelines. By premising each set of guidelines on Professor Paul H. Robinson’s distributive principle of empirical desert, which is informed by lay intuitions of justice, the federal system …

Violent Crimes And Known Associates: The Residual Clause Of The Armed Career Criminal Act, David C. Holman

David Holman

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (ACCA). The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner—instead of based on the statutory crimes of which they were actually convicted. Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway.

The courts’ application of …

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Arthur Leavens

The article examines the conceptual legitimacy of state-law expansion of federal constitutional prophylactic rules. Owing to the nature and purpose of prophylactic rules – to guide lower courts in their implementation of the Constitution’s broader, more indeterminate principles – the article argues that such rules (while surely of constitutional status) are inherently subject to revision where necessary to correct a lack of fit with their respective underlying principles. If a state concludes that a prophylactic rule announced by the Supreme Court under-protects the constitutional principle that it is meant to implement, the article argues that it is conceptually appropriate for …

The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda

Aldo Zammit Borda

The Rome Statute (RS) of the International Criminal Court (ICC) is a milestone for the role it accords to victims in international criminal proceedings. The provisions on victims’ participation in the RS system have been applied for the first time in the case of Mr Thomas Lubanga Dylio. This paper takes the view that a number of significant interlocutory pronouncements on victims’ participation have already been made by the ICC Pre-Trial, Trial and Appeals Chambers which, as such, deserve further analysis. The paper will firstly provide a brief overview of developments with regard to victims’ participation in the area of …

Some Reflections On Conservative Politics And The Limits Of The Criminal Sanction, Richard Broughton

Richard Broughton

This Article, written for the Charleston School of Law’s recent symposium on Crime & Punishment, briefly addresses the significance of popular forces and conservative political thought in an American criminal justice regime that has become too broad in its scope and sometimes unnecessarily harsh in its treatment of certain offenders. Although conservatives can plausibly embrace some judicially-enforceable limits on the criminal law, a conservative view of structural constitutional considerations would still constrain the judiciary’s authority to undermine popular decision-making as to criminal law and punishment. This Article cites the Supreme Court’s disparate approach to capital and non-capital proportionality issues under …

In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine

Reid G. Fontaine

This is a rejoinder to Professor Corrado in the upcoming special section of the American Criminal Law Review on the nature, structure, and function of self-defense and defense of others law.

Rethinking Categorical Prohibitions: How The Current Test Fails Mentally Ill Offenders And What To Do About It, Pamela A. Wilkins

Pamela A Wilkins

If offenders with serious mental illnesses generally are no more culpable than otherwise similarly situated juvenile or mentally retarded offenders, then why have they not also been found (as is true for juveniles and the mentally retarded) to be constitutionally exempt from being sentenced to death? The answer lies in the Supreme Court’s flawed Eighth Amendment test for categorical prohibitions: the Eighth Amendment imposes a desert limitation on the State’s ability to punish with death, but the current categorical prohibitions test does a poor job measuring offender deserts and even societal beliefs about offender deserts. This article proposes a new …

Graham V. Florida: Justice Kennedy's Vision Of Childhood And The Role Of Judges, Tamar R. Birckhead

Tamar R Birckhead

This short essay examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This essay argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but also in Establishment Clause cases set …

Culture Clash: The Challenge Of Lawyering Across Difference In Juvenile Court, Tamar R. Birckhead

Tamar R Birckhead

In analyzing the causes of wrongful convictions of youth in juvenile court, the role of the defense attorney can be overlooked and its importance underestimated. Although juvenile defenders are trained to advocate based on their young client‟s expressed interest rather than relying on what they deem to be in the child‟s best interest, this basic tenet is often more challenging to follow than is commonly acknowledged. The norms of effective criminal defense practice—which emphasize rigorous oral and written advocacy with little mention of whether the client has learned a lesson from the experience—stand in direct contrast to the informal culture …

Ad Law Incarcerated, Giovanna Shay

Giovanna Shay

Prison and jail regulation is the administrative law of mass incarceration. Although the United States imprisons more people than any other nation, our corrections policies are a legal “no man’s land.” Scholars ignore them. Courts defer to them. States routinely exempt them from their administrative procedure act requirements. This Article focuses on the largely unexamined area of corrections regulation and makes the case for subjecting corrections policies to notice-and-comment rulemaking, or according them less deference. Corrections rules became increasingly important when the first wave of prison reform efforts produced bureaucratization of prison systems in the 1970s and early 1980s. Subsequently, …

The Hybrid’S Handmaiden: Media Coverage Of The Special Court For Sierra Leone, Jessica Feinstein

Jessica Feinstein

As the first international war crimes court since Nuremberg to be located in the country where the crimes occurred, the Special Court for Sierra Leone (SCSL) has had a unique opportunity to directly impact its primary audience – Sierra Leoneans. This article examines the interactions between the SCSL and the local, West African media (rather than the international media) – in particular, Sierra Leonean journalists. Based on interviews with Special Court officials, third-party observers, and West African journalists, this paper analyzes the approach the SCSL has adopted with regard to media relations and its subsequent effect on both local coverage …

Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume

Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …

Child Laundering And The Hague Convention On Intercountry Adoption: The Future And Past Of Intercountry Adoption, David M. Smolin

David M. Smolin

The United States ratification of the 1993 Hague Convention on Intercountry Adoption became effective April 1, 2008, amidst a context of declining numbers of intercountry adoptions and increasing media attention to corruption and child trafficking in the intercountry adoption system. There is a need to sort out the connections between these events, and chart a course for the future. This article includes an extensive discussion of the work of preparation of the Hague Convention on Intercountry Adoption. The article demonstrates that concerns with child trafficking in the intercountry adoption system were a central impetus to the creation of the Convention. …

Can Criminal Law Be Controlled?, Darryl K. Brown

Darryl K. Brown

This review of Douglas Husak's 2008 book, Overcriminalization: The Limits of the Criminal Law, summarizes and largely endorses Husak's normative argument about the indefensible expansiveness of much contemporary criminal liability. It then offers a skeptical (or pessimistic) argument about the possibilities for a normative theory such as Husak's to have much effect on criminal justice policy in light of the political barriers to reform.

What Does Intent Mean?, David Crump

David Crump

Intent sounds as though it has a clear meaning. But it does not. Sometimes it is defined strictly, so as to require purpose: a conscious desire on the part of the actor to bring about the result. Sometimes it is a lesser standard, requiring knowledge that the result is likely to happen. Sometimes intent is defined in a way that corresponds, really, to recklessness or negligence, requiring only an awareness of some possibility of a harmful result. Some courts have even said that objective blameworthiness is sufficient to constitute intent, implying that no mental state at all is required. Some …

Classification Of Participants In Suicide Attacks And The Implications Of This Classification For The Severity Of The Sentence: The Israeli Experience In The Military Courts In Judea And Samaria, Chagai D. Vinizky, Amit Preiss

Chagai D Vinizky

*** A revised version of this article is forthcoming in 30 Pace Law Review (Winter2010) *** The twenty-first century witnessed a considerable rise in the number of suicide attacks. The largest suicide attacks were carried out by Al-Qaeda in the United States on 11.9.2001 when that organization crashed four passenger planes (two into the Twin Towers and one into the Pentagon building) killing 2,973 civilians. Between the 11th September and the present time, suicide attacks have taken place throughout the world, including in Turkey, Great Britain, Egypt, India, Jordan, Spain and Iraq leading to thousands of deaths. A large proportion …

Qualitative And Quantitative Proportionality - A Specific Critique Of Retributivism, John D. Castiglione

John D. Castiglione

This Article presents a normative model of proportionality review under the Cruel and Unusual Punishments Clause. I divide proportionality into two organizing concepts: “qualitative proportionality,” which concerns the methods used to punish the individual and the conditions under which he serves his sentence, and “quantitative proportionality,” which concerns the temporal length of the sentence imposed. I argue that the Cruel and Unusual Punishments Clause is best understood to mandate review of the qualitative proportionality of the sentence, but not the quantitative proportionality of the punishment. The most significant feature of this model is an appreciation for the role of human …

The Presumption Of Innocence In The French And Anglo-American Legal Traditions, Francois Quintard-Morenas

Francois Quintard-Morenas

Despite evidence that the presumption of innocence was something more than an instrument of proof, common law scholars in the nineteenth century reduced the doctrine to an evidentiary rule without acknowledging the role of the principle as a shield against punishment before conviction in both the civil and common law traditions. The resulting narrow conception of the presumption of innocence has since pervaded the legal and public discourse in the United States, where suspects are increasingly treated as guilty before trial. Using the French Declaration of Rights of 1789 and the English Prison Act of 1877 as points of reference, …