Law Commons^™

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

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This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

The Progressive Love Affair With The Carceral State, Kate Levine

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A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

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Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Entitlement To Punishment, Kyron J. Huigens

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This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …

Prosecutorial Declination Statements, Jessica A. Roth

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This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

The Necessity Of The Good Person Prosecutor, Jessica A. Roth

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In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a good prosecutor.

The Culture Of Misdemeanor Courts, Jessica A. Roth

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The misdemeanor courts that preside over the majority of criminal cases in the United States represent the “front porch” of our criminal justice system. These courts vary in myriad ways, including size, structure, and method of judicial appointment. Each also has its own culture – i.e., a settled way of doing things that reflects deeper assumptions about the court’s mission and its role in the community – which can assist or impede desired policy reforms. This Article, written for a Symposium issue of the Hofstra Law Review, draws upon the insights of organizational culture theory to explore how leaders can …

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

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No abstract provided.

Sonic Jihad — Muslim Hip Hop In The Age Of Mass Incarceration, Spearit

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This essay examines hip hop music as a form of legal criticism. It focuses on the music as critical resistance and “new terrain” for understanding the law, and more specifically, focuses on what prisons mean to Muslim hip hop artists. Losing friends, family, and loved ones to the proverbial belly of the beast has inspired criticism of criminal justice from the earliest days of hip hop culture. In the music, prisons are known by a host of names like “pen,” “bing,” and “clink,” terms that are invoked throughout the lyrics. The most extreme expressions offer violent fantasies of revolution and …

Alternative Elements, Jessica A. Roth

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The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

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The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

On Race Theory And Norms, Christian Sundquist

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This article has been adapted from an address given at the Albany Law Review Symposium in Spring 2009. This article discusses the judicial acceptance of DNA random match estimates, which uses DNA analysis to estimate the likelihood that a criminal defendant is the source of genetic material that is found at a crime scene. Relying on race, these tests demonstrate how such a re-inscription of race as a biological entity threatens the modern conception of race as a social construction, and how those estimates should be rejected as inadmissible on a doctrinal level under the Federal Rules of Evidence.

I Remember Professor Wechsler, Yale Kamisar

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This year marks the one hundredth anniversary of the birth of Professor Herbert Wechsler, one of the greatest criminal law scholars in American history. When I first met Professor Wechsler (in the spring of 1951, in my first year of law school), I was struck by how old he seemed at the time and how young he actually was (forty-two). One reason he appeared to be much older than his age was that he was such a stem, imposing figure. Another reason was that he had already accomplished so much. At the age of twenty-eight, he had co-authored (with his …

Globalization, Legal Transnationalization And Crimes Against Humanity: The Lipietz Case, Vivian Grosswald Curran

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Decided in June, 2006, the Lipietz case marks the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. It both departs from prior, established French law and reflects numerous mechanisms by which national law is transnationalizing. The case illustrates visible, invisible, substantive and methodological changes that globalization is producing as law's transnationalization changes national law. It also suggests some of the difficulties national legal systems face as their transnationalization produces legal change at a rate that outpaces the national capacity for efficient adaptation. The challenges illustrated by Lipietz, characteristic of globalization, include …

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr

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The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …

Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah

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No abstract provided.

The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward Stein

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Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.

Solving The Apprendi Puzzle, Kyron Huigens

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No abstract provided.

Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld

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By monitoring and investigating errors in the criminal justice system, innocence commissions could help remedy systemic defects that bring about wrongful convictions.

Indirect Infringement And Counterfeiting: Remedies Available Against Those Who Knowingly Rent To Counterfeiters, Barbara Kolsun, Jonathan Bayer

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No abstract provided.

Structures Of Environmental Criminal Enforcement, Michael Herz

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No abstract provided.

Virtue And Inculpation, Kyron J. Huigens

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This article sets forth a general theory of the justification of legal punishment based on virtue ethics and republican political theory. Criminal law serves not only to deter and take retribution, but also to inculcate virtue. This theory explains why, for example, people do not consciously abide by law. They just do, because they have no desire to do things that are contrary to the criminal law. This conception of virtue as well-ordered desire is distinctively Aristotelian. The political justification for inculcating virtue by means of criminal law is the classic republican conception of government as being devoted specifically to …

The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing

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No abstract provided.

Jewish Law And The State’S Authority To Punish Crime, J. David Bleich

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No abstract provided.

The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

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No abstract provided.

Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam

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This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.

Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing

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This Article accepts and will develop the Court's isomorphic theory of immunity and privilege, and will show why Portash is nonetheless correct in result. A case for a broadened view of the privilege, partially because of the availability of testimonial immunity, will be made. Apftlbaum will be shown to be incorrect in result. This Article will also analyze the problem of immunized testimony and perjury by inconsistent statement, a problem faced once by the Court but left unresolved. Finally, this Article will discuss the constitutional requirements of an immunity statute, and consider an immunity case presently pending before the Supreme …

Faces Without Features: The Surface Validity Of Criminal Inferences, Peter Lushing

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This article will offer nonempirical grounds to show that instructed inferences operate as the dissenters believe, at least when the instruction does not explicitly refer to the evidence at trial, but to occurrences in general.