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Law and Contemporary Problems

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How The Post-Framing Adoption Of The Bare-Probable-Cause Standard Drastically Expanded Government Arrest And Search Power, Thomas Y. Davies Jul 2010

How The Post-Framing Adoption Of The Bare-Probable-Cause Standard Drastically Expanded Government Arrest And Search Power, Thomas Y. Davies

Law and Contemporary Problems

Davies exposes a story that has been almost entirely overlooked: that the now-accepted doctrine that probable cause alone can justify a criminal arrest or search did not emerge until well after the framing of the Bill of Rights in 1789 and constituted a significant departure from the criminal-procedure standards that the Framers of the Bill thought they had preserved.


What Is Probable Cause, And Why Should We Care?: The Costs, Benefits, And Meaning Of Individualized Suspicion, Andrew E. Taslitz Jul 2010

What Is Probable Cause, And Why Should We Care?: The Costs, Benefits, And Meaning Of Individualized Suspicion, Andrew E. Taslitz

Law and Contemporary Problems

Taslitz defines probable cause as having four components: one quantitative, one qualitative, one temporal, and one moral. He focuses on the last of these components. "Individualized suspicion," the US Supreme Court has suggested, is perhaps the most important of the four components of probable cause. That is a position with which he heartily agree. The other three components each play only a supporting role. But individualized suspicion is the beating heart that gives probable cause its vitality.


Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins Apr 2009

Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins

Law and Contemporary Problems

In recent decades, the criminal-justice pendulum has swung to the opposite extreme. Criminal law is often described as covering disputes between the offender and the state. Victims are not direct parties to criminal proceedings, they have no formal right to either initiate or terminate a criminal action, and they have no control over the punishment meted out to offenders. In this state-centric system, victim needs have been left unsatisfied, giving rise to a politically powerful victims' rights movement that has had success in giving victims rights of access to prosecutors and rights to be heard in the courtroom. Here, O'Hara …


Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, And Law, Brent Garland, Mark S. Frankel Apr 2006

Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, And Law, Brent Garland, Mark S. Frankel

Law and Contemporary Problems

Garland and Frankel issue a call for scientists, lawyers, courts and lawmakers to begin a critical dialogue about the implications of scientific discoveries and technological advances in criminal law, behavioral genetics and neuroscience.


The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen Rothenberg, Alice Wang Apr 2006

The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen Rothenberg, Alice Wang

Law and Contemporary Problems

Rothenberg and Wang discuss the broader social implications of researching traits of interest to the criminal law. They consider the social impact for those who participate in behavioral genetics studies, particularly when such research focuses on behaviors related to conduct such as addiction.


Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse Apr 2006

Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse

Law and Contemporary Problems

In light of the abundance of studies focusing on the genetic contributions to addiction, Morse develops a meaningful background on the legal and scientific images of behavior, the disease concept of addiction, and the aspects of addiction for which a person may be held legally accountable.


From The Ne’Er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard E. Harcourt Jul 2003

From The Ne’Er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard E. Harcourt

Law and Contemporary Problems

Harcourt discusses three developments in 20th century criminal law: the evolution of parole board decision-making in the early 20th century, the development of fixed sentencing guidelines in the late 20th century, and the growth of criminal profiling as a formal law enforcement tool since the 1960s. In each of these case studies, he focuses on the criminal law decision-making.


The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy Jul 2000

The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy

Law and Contemporary Problems

Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in "Strickland" has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. Murphy reviews the right to counsel and discusses the crucial role of counsel in capital cases throughout the trial and appellate processes.


The Canadian Criminal Jury: Searching For A Middle Ground, Neil Vidmar Apr 1999

The Canadian Criminal Jury: Searching For A Middle Ground, Neil Vidmar

Law and Contemporary Problems

Vidmar discusses the history of the Canadian jury and develops a profile of the Canadian jury today. The law and rationale behind the procedures involved in the "Bernardo" trial are also described.


The Scottish Criminal Jury: A Very Peculiar Institution, Peter Duff Apr 1999

The Scottish Criminal Jury: A Very Peculiar Institution, Peter Duff

Law and Contemporary Problems

Duff describes and discusses the Scottish criminal jury. While the exact origins of the Scottish criminal jury are obscure, it is clear that it developed in tandem with, although in a different fashion from, its English counterpart.


Criminal Trial Juries In Australia: From Penal Colonies To A Federal Democracy, Michael Chesterman Apr 1999

Criminal Trial Juries In Australia: From Penal Colonies To A Federal Democracy, Michael Chesterman

Law and Contemporary Problems

The recent history of juries in Australia reveals an interesting clash between the endeavours of state and territory governments to reduce the costs associated with jury trial by various means and the determination of the High Court of Australia to reassert the traditional values and features of jury trial.


The New Zealand Jury, Neil Cameron, Susan Potter, Warren Young Apr 1999

The New Zealand Jury, Neil Cameron, Susan Potter, Warren Young

Law and Contemporary Problems

In New Zealand, the recent history of the jury has been one of fairly steady decline. This is particularly so of the civil jury, which has become virtually extinct with little realistic prospect of revival.


The Jury System In Contemporary Ireland: In The Shadow Of A Troubled Past, John D. Jackson, Katie Quinn, Tom O'Malley Apr 1999

The Jury System In Contemporary Ireland: In The Shadow Of A Troubled Past, John D. Jackson, Katie Quinn, Tom O'Malley

Law and Contemporary Problems

Jackson et al discuss the distinctive features of criminal trial by jury in Ireland, both north and south, to explain how the jury continues to survive within modern Ireland and how it also has managed to decline in significance.


Reviving The Criminal Jury In Japan, Lester W. Kiss Apr 1999

Reviving The Criminal Jury In Japan, Lester W. Kiss

Law and Contemporary Problems

Kiss analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal and legal viewpoints in light of Japan's prior experience with a jury system.


The American Criminal Jury, Nancy Jean King Apr 1999

The American Criminal Jury, Nancy Jean King

Law and Contemporary Problems

King describes the American criminal jury, focusing on those aspects of the institution that distinguish it from juries in other parts of the world.


Racial Disparity And The Death Penalty, John C. Mcadams Oct 1998

Racial Disparity And The Death Penalty, John C. Mcadams

Law and Contemporary Problems

McAdams examines the rhetoric and data supporting the "mass market" version of the racial disparity thesis. The system is racist in that it punishes those who kill whites more severely than those who kill blacks.


The Quality Of Justice In Capital Cases: Illinois As A Case Study, Leigh B. Bienen Oct 1998

The Quality Of Justice In Capital Cases: Illinois As A Case Study, Leigh B. Bienen

Law and Contemporary Problems

Bienen uses Illinois as a case study of injustice in capital cases. The quality of justice in the trial and appeal of capital cases in Illinois is of a very low standard.


Sentenced For A “Crime” The Government Did Not Prove: Jones V. United States And The Constitutional Limitations On Factfinding By Sentencing Factors Rather Than Elements Of The Offense, Benjamin J. Priester Oct 1998

Sentenced For A “Crime” The Government Did Not Prove: Jones V. United States And The Constitutional Limitations On Factfinding By Sentencing Factors Rather Than Elements Of The Offense, Benjamin J. Priester

Law and Contemporary Problems

Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court's missed opportunity in "Jones v. United States" to adopt the test proposed by Justice Scalia.


Reallocating Interpretive Criminal-Lawmaking Power Within The Executive Branch, Dan M. Kahan Jan 1998

Reallocating Interpretive Criminal-Lawmaking Power Within The Executive Branch, Dan M. Kahan

Law and Contemporary Problems

A strategy for regaining control of federal criminal law, the reallocation of interpretive criminal law-making power within the Executive Branch, is discussed.


Comment On Lynch, Michael B. Mukasey Jul 1997

Comment On Lynch, Michael B. Mukasey

Law and Contemporary Problems

Mukasey offers a comment on Gerard E. Lynch's article concerning the role of criminal law in policing corporate misconduct.


Comment On Lynch, Kenneth J. Bialkin Jul 1997

Comment On Lynch, Kenneth J. Bialkin

Law and Contemporary Problems

Bialkin offers a comment on Gerard E. Lynch's article on the role of criminal law in policing corporate misconduct.


The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch Jul 1997

The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch

Law and Contemporary Problems

Lynch explores what it means or should mean to argue that a business misconduct matter is or isn't a "criminal case."