Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Criminal Law (1486)
- Criminal Procedure (444)
- Constitutional Law (223)
- Law and Society (144)
- Social and Behavioral Sciences (144)
-
- Law Enforcement and Corrections (127)
- Evidence (110)
- International Law (100)
- Courts (97)
- Legal Studies (95)
- Public Law and Legal Theory (91)
- Civil Rights and Discrimination (90)
- Criminology and Criminal Justice (84)
- Jurisprudence (76)
- State and Local Government Law (66)
- Law and Race (62)
- Legal History (62)
- Legislation (58)
- Human Rights Law (55)
- Law and Psychology (55)
- Comparative and Foreign Law (52)
- Sociology (52)
- Law and Gender (45)
- Judges (43)
- Health Law and Policy (42)
- Arts and Humanities (41)
- Juvenile Law (41)
- Jurisdiction (40)
- Law and Philosophy (38)
- Institution
-
- Selected Works (203)
- Vanderbilt University Law School (158)
- Fordham Law School (114)
- SelectedWorks (94)
- Maurer School of Law: Indiana University (85)
-
- University of Pennsylvania Carey Law School (82)
- Washington and Lee University School of Law (66)
- American University Washington College of Law (57)
- Duke Law (53)
- University of South Carolina (48)
- University of Georgia School of Law (46)
- Schulich School of Law, Dalhousie University (43)
- University of Colorado Law School (43)
- Boston University School of Law (39)
- Louisiana State University Law Center (37)
- West Virginia University (36)
- The University of Akron (35)
- Touro University Jacob D. Fuchsberg Law Center (34)
- Association of American Law Schools (32)
- Northwestern Pritzker School of Law (32)
- University of Baltimore Law (32)
- University of Denver (32)
- University of Missouri School of Law (32)
- University of Tennessee College of Law (31)
- Pepperdine University (29)
- University of Maryland Francis King Carey School of Law (28)
- St. Mary's University (26)
- Cleveland State University (24)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (23)
- Columbia Law School (22)
- Publication
-
- Faculty Scholarship (161)
- Vanderbilt Law Review (96)
- Faculty Scholarship at Penn Carey Law (82)
- Articles by Maurer Faculty (70)
- Fordham Law Review (64)
-
- Faculty Publications (50)
- Publications (45)
- Scholarly Works (45)
- South Carolina Law Review (45)
- Articles in Law Reviews & Other Academic Journals (42)
- All Faculty Scholarship (38)
- Journal Articles (37)
- Louisiana Law Review (36)
- Akron Law Review (34)
- West Virginia Law Review (34)
- Fordham Urban Law Journal (33)
- Journal of Legal Education (32)
- Dalhousie Law Journal (31)
- UTK Law Faculty Publications (31)
- University of Denver Criminal Law Review (30)
- Vanderbilt Journal of Transnational Law (30)
- Vanderbilt Law School Faculty Publications (30)
- Touro Law Review (27)
- Washington and Lee Law Review (26)
- Articles (25)
- Pepperdine Law Review (24)
- Journal of Criminal Law and Criminology (22)
- Law and Contemporary Problems (22)
- Georgetown Law Faculty Publications and Other Works (19)
- Hofstra Law Review (19)
- Publication Type
Articles 1 - 30 of 2189
Full-Text Articles in Law
Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol
Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol
Arkansas Law Review
To say that the United States is infatuated with incarceration would be a gross understatement. As a result of “tough on-crime” laws, the United States has “the largest prison population in the world, with more than 2.3 million persons behind bars on any given day” and it “also has the world’s highest per capita rate of incarceration” with a rate that is “five to ten times higher than those of other industrialized democracies like England and Wales . . . . Canada . . . , and Sweden.” Due in part to prison population increases, the conditions of U.S. prisons …
A First Step Back In Time?, Blake Jacobs
A First Step Back In Time?, Blake Jacobs
West Virginia Law Review
This Note discusses the implications of the United States Supreme Court’s holding in Concepcion v. United States, which left open whether district courts must reanalyze the 18 U.S.C.A. § 3553(a) factors when ruling on a motion to reduce a defendant’s sentence under the First Step Act. The decision settled a dispute between the First, Fifth, Ninth, and Eleventh Circuits, which did not require sentencing courts to consider intervening factual or legal developments; and the Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits which did. However, the Supreme Court’s decision only obligates a district court to consider intervening …
Kahler V. Kansas: How The Current Insanity Defense Regime Underserves Postpartum Psychosis Defendants, How The Supreme Court Failed To Act, And How Now Is The Perfect Time To Implement A Gender-Specific Postpartum Defense, Victoria Frazier
St. Mary's Law Journal
No abstract provided.
Countermajoritarian Criminal Law, Michael L. Smith
Countermajoritarian Criminal Law, Michael L. Smith
Pace Law Review
Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.
This Article adds to and amplifies this criticism by …
The Inconsistencies Of Consent, Chunlin Leonhard
The Inconsistencies Of Consent, Chunlin Leonhard
Catholic University Law Review
U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting …
Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon
Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon
Faculty Scholarship
March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …
Report On The Texas Legislature, 87th Session: An Urban Perspective-Executive Summary, Sarah Guidry Esq., Zahra Buck Whitfield Esq., Sidikat Ishola Student, Jamal Garner Student
Report On The Texas Legislature, 87th Session: An Urban Perspective-Executive Summary, Sarah Guidry Esq., Zahra Buck Whitfield Esq., Sidikat Ishola Student, Jamal Garner Student
The Bridge: Interdisciplinary Perspectives on Legal & Social Policy
In Texas, the legislature meets every two years. At the end of a regular legislative session, hundreds of passed bills will have been sent to the governor for approval. The large number of bills and the wide range of topics they cover can make it difficult to gain an understanding of all the new laws that were passed, and this session there were three special sessions as well. At the close of each legislative session the Earl Carl Institute publishes, for the benefit of its constituents, highlights from the session in a bi-annual legislative report. In this year’s publication entitled …
Courts Without Court, Andrew Ferguson
Courts Without Court, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …
Teaching Case Theory, Binny Miller
Teaching Case Theory, Binny Miller
Articles in Law Reviews & Other Academic Journals
As the key means of framing a case, case theory is the central problem that lawyers confront in constructing a case, and many of the decisions made during the life of a case are decisions that rest on case theory. Building on the author's earlier scholarship on case theory, this essay articulates a concept of case theory called "storyline," and sets out a framework for teaching this concept. The framework for this process has three basic stages - imagining case theory, evaluating (and constructing) case theory, and choosing case theory. The material for this process is stories, which are the …
War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson
War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson
Articles in Law Reviews & Other Academic Journals
On May 24, 20022, the Washington Post carried front-page news that a court in Ukraine had sentenced a 21-year-old Russian soldier, Vadim Shishimarin, to life imprisonment for the war crime of premeditated murder of a civilian, 62-year-old Oleksandr Shelipov. The session was the first war crimes trial in Ukraine since Russia's invasion three months earlier.
Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs
Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs
Pepperdine Dispute Resolution Law Journal
The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.
Reported Experiences With Plea Bargaining: A Theoretical Analysis Of The Legal Standard, Krystia Reed, Allison Franz, Vincent Calderon, Alisha Meschkow, Valerie F. Reyna
Reported Experiences With Plea Bargaining: A Theoretical Analysis Of The Legal Standard, Krystia Reed, Allison Franz, Vincent Calderon, Alisha Meschkow, Valerie F. Reyna
West Virginia Law Review
Although the majority of criminal cases in the United States are settled with plea bargains, very little empirical evidence exists to explain how defendants make life-altering plea bargain decisions. This Article first discusses the psychologicalfactors involved in plea bargaining decisions. Next, this Article empirically examines the factors involved in plea decisions of real-life defendants within the legal and psychological contexts. Finally, this Article highlights the psychological issues that need to be further examined in pleabargaining literature.
Modern Sentencing Mitigation, John B. Meixner Jr.
Modern Sentencing Mitigation, John B. Meixner Jr.
Northwestern University Law Review
Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado
Faculty Scholarship
In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …
Quo Vadis? Assessing New York’S Civil Forfeiture Law, Steven L. Kessler
Quo Vadis? Assessing New York’S Civil Forfeiture Law, Steven L. Kessler
Touro Law Review
No abstract provided.
Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi
Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi
JCLC Online
This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …
Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French
Friends Without Benefits: Criminal Insider Trading Liability And The "Personal Benefit" Test After Blaszczak, Curtis A. French
JCLC Online
The U.S. Supreme Court established the “personal benefit” test in Dirks v. SEC to determine whether a tippee assumed a fiduciary duty to not trade based on or disclose inside information when a tipper breached his or her fiduciary duty by improperly disclosing such information to the tippee. Under the personal benefit test, a tipper breaches his or her fiduciary duty if the tipper derives a personal benefit, either directly or indirectly, from disclosing the inside information to a tippee. The Supreme Court provided examples as to what constitutes a personal benefit, such as the tipper’s expectation of reputational benefits …
The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin
The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part Ii, Regina Austin
JCLC Online
The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the second in a series of two essays that explore Reginald McFadden’s commutation. This Part considers whether, in hindsight, there was any sound basis for McFadden’s release given the policy grounds for commutations and describes …
Stated Culpability Requirements, Scott England
Stated Culpability Requirements, Scott England
Faculty Scholarship
This Article comprehensively reviews the law of stated culpability requirements in Model Penal Code (MPC) jurisdictions. Part I provides an overview of section 2.02(4), explaining how the provision works and its role in the MPC’s culpability scheme. Part II then identifies section 2.02(4)’s main weaknesses, drawing on both the provision itself and the Code’s commentary. Next, Part III reviews the law in the twenty-five states with culpability provisions influenced by the MPC, identifying specific problems that section 2.02(4) has created in the case law. Finally, Part IV recommends new stated-culpability rules that improve section 2.02(4) and more rigorously enforce the …
Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson
Embracing Crimmigration To Curtail Immigration Detention, Pedro Gerson
Faculty Scholarship
Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: …
The Dignitary Confrontation Clause, Erin L. Sheley
The Dignitary Confrontation Clause, Erin L. Sheley
Faculty Scholarship
For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …
The Trouble With Time Served, Kimberly Ferzan
The Trouble With Time Served, Kimberly Ferzan
Faculty Scholarship at Penn Carey Law
Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …
The United States Supreme Court’S Enduring Misunderstanding Of Insanity, David Dematteo, Daniel A. Krauss, Sarah Fishel, Kellie Wiltsie
The United States Supreme Court’S Enduring Misunderstanding Of Insanity, David Dematteo, Daniel A. Krauss, Sarah Fishel, Kellie Wiltsie
New Mexico Law Review
Within mental health law, the legal defense of insanity has received a disproportionate amount of attention. Classified as a legal excuse, the insanity defense generally negates legal blameworthiness for criminal defendants who successfully prove that at the time of the offense, they did not know right from wrong or were unable to conform their conduct to the requirements of the law, due to an underlying mental health condition. The insanity defense has a lengthy history in the United States, with several different formulations and numerous court decisions addressing various aspects of the defense. Despite its firm entrenchment in U.S. criminal …
“Reverse” 404(B) Is Not An Evidence Law Issue: A Call To Revive The Compulsory Process Clause As A Vehicle For Evidence Admission, Clay Wilwol
New Mexico Law Review
In criminal cases, Federal Rule of Evidence 404(b) is typically used by prosecutors seeking to introduce non-propensity “crimes, wrongs, or other acts” evidence against defendants. However, sometimes it is the defendant who seeks to use the Rule as a vehicle for evidence admissibility, either to provide such evidence to implicate the guilt of a third party or to help prove the intent or motive of alleged victims in violent crimes involving altercations. This latter defense-proffered use of Rule 404(b) has been termed “reverse” 404(b), and currently there is disagreement among courts (both federal and state) regarding how to assess the …
Neuroscience, Criminal Sentencing, And Human Rights, Elizabeth Shaw
Neuroscience, Criminal Sentencing, And Human Rights, Elizabeth Shaw
William & Mary Law Review
This Article discusses ways in which neuroscience should inform criminal sentencing in the future. Specifically, it compares the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative “neurointerventions” on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. Various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article examines the role of human rights (in particular, the moral right to mental integrity and the legal …
Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser
Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser
William & Mary Law Review
Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …
The Democratizing Potential Of Algorithms?, Ngozi Okidegbe
The Democratizing Potential Of Algorithms?, Ngozi Okidegbe
Faculty Scholarship
Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …
Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax
Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax
Articles in Law Reviews & Other Academic Journals
With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …
Singapore's Approach To Sex By Deception, Wing Cheong Chan
Singapore's Approach To Sex By Deception, Wing Cheong Chan
Research Collection Yong Pung How School Of Law
A vigorous debate about whether sex by deception ought to be considered rape appears tohave caught the imagination of criminal law theorists and commentators in recent years. Thisdebate is by no means devoid of practical implications as shown by case law from variousjurisdictions which have had to grapple with the issue. This article sets out the approach taken inSingapore and suggests that it may offer a practical solution in this contentious area of criminallaw and the understanding of consent.
Remodelling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic
Remodelling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic
Faculty Scholarship at Penn Carey Law
This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …