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Articles 1 - 30 of 234
Full-Text Articles in Law
Absolute Immunity: A License To Rape Justice At Will, Prentice L. White
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
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
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 aspects …
When Juveniles Face Questioning, Tamar R. Birckhead
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
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 …
Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber
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 thwart possible …
Criminal Law And Procedure, Rex A. Collings Jr.
Criminal Law And Procedure, Rex A. Collings Jr.
Cal Law Trends and Developments
No abstract provided.
Off The Roads & Out Of The Courts: Enter A Technology Fix For Drunk Driving, Nora J. Pasman-Green
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 current …
Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis
Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis
Michael C Gizzi
The decision in Arizona v. Gant, handed down in April of 2009, was a surprise for law enforcement and Supreme Court observers alike. For law enforcement, it took away their unfettered discretion to search a car anytime they engaged in a routine traffic stop, which was a commonly used tool for drug interdiction and combating gangs. For Court observers, it not only was a rare decision to suppress evidence in a Fourth Amendment case but it also presented an unusual line up of justices. This study considers the implications of Gant both for law enforcement and for observers of the …
Towards A Gender-Inclusive Definition Of Child Soldiers: The Prosecutor V. Thomas Lubanga Dyilo, Kristin M. Gallagher
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 …
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi
Hariqbal Basi
Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …
Scent Identification In Criminal Investigations And Prosecutions: New Protocol Designs Improve Forensic Reliability, John Ensminger
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 …
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi
Hariqbal Basi
Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …
The Crime Of Genocide In The New Turkish Penal Code, Mahmut Koca
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, …
""Your Honor, May I Have That In Writing?" -- Law And Policy Supporting Vacatur For Violation Of The Federal Sentencing Written Order Requirement, Judy A. Clausen Professor
""Your Honor, May I Have That In Writing?" -- Law And Policy Supporting Vacatur For Violation Of The Federal Sentencing Written Order Requirement, Judy A. Clausen Professor
Judy A. Clausen Professor
A disturbing trend has emerged in our federal courts. District judges are ignoring the statutory mandate to identify in the written order imposing a sentence the specific reason for deviating from the range recommended by the Federal Sentencing Guidelines. Rather than vacating these out-of-range sentences based on the clear statutory violations, appellate courts are affirming the sentences despite the fact that the sentences are imposed in violation of law. This article proposes a solution to this problem.
"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 number …
Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss
Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss
David Sloss
In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …
U.S. International Narcotics Extradition Cases: Legal Trends And Developments With Implications For U.S.-China Drug Enforcement Activities, David Aronofsky, Jie Qin
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 unnecessary for effective …
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
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
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
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 unreasonable searches and …
Can Cia Interrogators Relying Upon Government Counsel Advice Be Prosecuted For Torture?, Adam M. Hochroth
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 considers whether interrogators …
The Pinkerton Problem, Bruce A. Antkowiak
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
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 …
The Image Of The Attorney: The Character Of Attorney Randolph Mason In Three Books By Melville Davisson Post, Patricia J. Brown
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
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 …
Confucian Influence On The Criminal Laws Of Korea And Japan, Woo-Jung Jon
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
Adam Lamparello
No abstract provided.
The Failure Of Consent, Michal Buchhandler-Raphael
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 in …
Secrets Behind Secrets: Disclosure Of Classified Information Before And During Trial And Why Cipa Should Be Revamped, Melanie M. Reid
Secrets Behind Secrets: Disclosure Of Classified Information Before And During Trial And Why Cipa Should Be Revamped, Melanie M. Reid
Melanie M. Reid
During the thirty years since its passage, CIPA has been utilized in hundreds (if not thousands) of criminal cases and used more frequently now than ever imagined in 1980. Yet, few prosecutors and defense counsel are familiar with CIPA and how to handle classified information when it is presented during the prosecution of a criminal case. CIPA has been misunderstood and misapplied by some judges because these rules only provide a framework for procedures on how to handle classified information when it is introduced during a criminal case. CIPA was not designed to establish a clear guideline on how judges …