Law Commons^™

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

The Sense And Nonsense Of Criminalizing Transfers Of Obscene Material: Criminalizing Privacy Violations (2008) 26 Singapore Law Review 126, Dennis J. Baker

Dr. Dennis J Baker

The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of …

Fantasy Crime, Susan Brenner

Susan Brenner

The article "Fantasy Crime" analyzes activity in virtual worlds that would constitute a crime if it were committed in the real world. The article reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. It analyzes the criminalization of virtual conduct that inflicts "harm" in the real world and virtual conduct that only inflicts "harm" in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. It then analyzes the necessity and propriety of criminalizing …

Taking The 'Hate' Out Of Hate Crimes: Applying Unfair Advantage Theory To Justify The Enhanced Punishment Of Opportunistic Bias Crimes, Jordan Woods

Jordan Blair Woods

C. English, Ed., Essays In The History Of Canadian Law, Volume Ix: Two Islands: Newfoundland And Prince Edward Island, R Blake Brown

Dalhousie Law Journal

The Osgoode Society for Canadian Legal History has played a vital role in encouraging legal history research in Canada, and one of its most important programs has been the Essays in the History of Canadian Law series. Canada lacks a legal history journal, but since 1981 the Osgoode Society has provided an opportunity for scholars to publish their work in one of its collections. Two Islands is the ninth such edited volume by the Osgoode Society that bears the title Essays in the History of Canadian Law. The first two volumes, published in 1981 and 1983, were general collections containing …

Determinative Sentencing Laws: Understanding The Law And Ethical Concerns, Linsey L. Krauss

Linsey L Krauss

No abstract provided.

North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead

Tamar R Birckhead

North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The …

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

Integrating Comparative Criminal Law: Criminal Law And Procedure, At Home And Abroad, Roger Fairfax

Presentations

No abstract provided.

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

University of Miami Inter-American Law Review

No abstract provided.

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Faculty Scholarship

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …

The Culpability Of Felony Murder, Guyora Binder

Journal Articles

Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for …

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

Dalhousie Law Journal

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their stxual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assaultor aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with nondisclosure of one's HIV status, the author concludes that criminal law should only …

Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste

Dalhousie Law Journal

A "restorative" approach to criminality and conflict has been proposed in a number of common law jurisdictions in a variety of legal contexts, both civil and criminal, with an interesting exception: white-collar crime, which is discussedin an almost exclusively retributive vocabulary. This paper explores what a specifically restorative response to white-collar crime might look like, a response which above all else would seek to heal the harm the crime has done. In particular,the author looks at the possibilities for voluntary participation of victims and offenders; broad stakeholder inclusion and a focus on future relations rather than past offences-all necessaryparts of …

The Modern Movement Of Vindicating Violations Of Criminal Defendants' Rights Through Judicial Discipline, Keith Swisher

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Death Is Unconstitutional: How Capital Punishment, Eric A. Engle

Eric A. Engle

Argues that capital punishment is unconstitutional as a violation of natural law because the punishment is disproportional, uncertain, and irrevocable.

The Age Of The Child: Interrogating Juveniles After Roper V. Simmons, Tamar R. Birckhead

Tamar R Birckhead

With its recent decision in Roper v. Simmons, invalidating the imposition of the death penalty on offenders who were younger than eighteen when their crimes were committed, the U.S. Supreme Court has heralded a major shift in the perspective of the legal system—and the culture at large—towards adolescents who commit crimes. Invoking social science research as well as a “common sense” understanding of the differences between teenagers and adults, the Court found that as a categorical matter, juveniles are not as culpable as adults and thus, cannot be classified among the “worst offenders,” deserving of the most severe punishment. Yet, …

Free To Leave? An Empirical Look At The Fourth Amendment’S Seizure Standard, David K. Kessler

David K Kessler

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. Both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide …

Ricin And The Assassination Of Georgi Markov, Marios Papaloukas, Christos Papaloucas, Apostolos Stergioulas

Marios Papaloukas

This article by Professors Marios Papaloukas, Christos Papaloukas, Apostolos Stergioulas investigates the causes of death of Georgi Markov, Georgi Markov, a well known Bulgarian novelist and playwright, dissident of the communist regime in his country, escaped to England where he dedicated himself in broadcasting from BBC World Service, the Radio Free Europe and the German Deutsche Welle against the communist party and especially against its leader Todor Zhivkov who in a party’s meeting told that he wanted Markov silenced for ever. On the 7th September 1978 Markov was executed with the deadly poison ricin injected to his thigh by a …

Human Dignity Under The Fourth Amendment, John D. Castiglione

John D. Castiglione

Fourth Amendment "reasonableness" jurisprudence as currently constituted is incapable of providing consistent decisions reflective of the underlying philosophical and moral structure of the Constitution. Increasingly, courts have allowed reasonableness analysis to devolve into little more than an awkward balancing exercise between the needs of law enforcement and the interests of "privacy." Upon initial consideration, this seems appropriate; the Fourth Amendment has been long been understood as a bulwark against unreasonable privacy invasions in the course of law enforcement. This understanding is, however, incomplete. As courts have moved towards an almost exclusive focus on privacy as the counter-balance to the government's …

Not Just The Peace Pipe But Also The Lance: Exploring Different Possibilities For Indigenous Control Over Criminal Justice, David Milward

Dr. David Milward

This article will exploring whether contrasts between restorative and punitive models of criminal justice inform an ideological struggle between Western and Indigenous approaches of criminal justice as Indigenous communities strive for greater control over criminal justice. The answer to this question will be examined in light of considerations for Indigenous control over justice. One concern by Western states is that Indigenous justice must strike the proper balance beteen community safety and offender healing. This paper contends that for self-determination to be effective, Indigenous leaders must include and consider the community at large when making decisions over criminal justice.

Self-Defense And The State, Kimberly Kessler Ferzan

All Faculty Scholarship

This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political …

Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit

American University Law Review

This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …

Victims And The Significance Of Causing Harm, Guyora Binder

Journal Articles

Many criminal law theorists find the punishment of harm puzzling. They argue that acts should be evaluated only on the basis of the risks they create and the actors' awareness of those risks; that punishing results violates both desert and utility. This article explains punishment of harm on the basis of political theory rather than moral philosophy. Punishing harm helps legitimize the rule of law by vindicating victims. A rule of law state precludes cycles of organized retaliatory violence by asserting a monopoly on retaliatory force, thereby depriving individuals and groups of the option of securing their own dignity. We …

Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …

Experts, Mental States, And Acts, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal justice system, derived in the federal courts and in most states from Daubert v. Merrell Dow Pharmaceuticals Co., should vary depending on whether the issue involved is past mental state or past conduct. While expert psychological testimony about past acts ought to be based on scientifically verifiable assertions, expert psychological testimony about subjective mental states relevant to criminal responsibility need not meet the same threshold. This …

Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko

Fordham Law Review

DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.

Fantasy Crime: The Role Of Criminal Law In Virtual Worlds, Susan W. Brenner

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes activity in virtual worlds that would constitute crime if they were committed in the real world. It reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. The Article then analyzes the criminalization of virtual conduct that inflicts "harm" in the real world and virtual conduct that only inflicts "harm" in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. Finally, it analyzes the necessity and propriety of criminalizing the second …

The Mental State Requirement For Accomplice Liability In American Criminal Law, John F. Decker

South Carolina Law Review

No abstract provided.