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Articles 1 - 30 of 39
Full-Text Articles in Law
Nothing Concentrates The Mind Like The Prospect Of A Hanging: The Criminalization Of The Sarbanes-Oxley Act, Ann Marie Tracey, Paul Fiorelli
Nothing Concentrates The Mind Like The Prospect Of A Hanging: The Criminalization Of The Sarbanes-Oxley Act, Ann Marie Tracey, Paul Fiorelli
Northern Illinois University Law Review
This article discusses: (1) the post-Enron environment and the events that led up to the whirlwind passage of the Sarbanes-Oxley Act of 2002, (2) the legislative history for criminalizing a bill that originated in the House Financial Services Committee, and (3) a comparison between the increased criminal provisions and penalties under the Act with already existing legislation. It also analyzes how Congress closed loop-holes, flexed its muscles with respect to corporate practices, and the necessity of the new criminal laws.
The Origins Of American Felony Murder Rules, Guyora Binder
The Origins Of American Felony Murder Rules, Guyora Binder
Journal Articles
Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …
Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe
Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe
Faculty Scholarship
No abstract provided.
Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii
Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii
Faculty Publications
This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …
Don't Forget To Wear Your Hunter Orange (Or Flack Jacket): A Critique On The Lack Of Criminal Prosecution Of Hunting "Accidents", John F. Decker
Don't Forget To Wear Your Hunter Orange (Or Flack Jacket): A Critique On The Lack Of Criminal Prosecution Of Hunting "Accidents", John F. Decker
South Carolina Law Review
No abstract provided.
The Criminal Defence Lawyer's Role, David Layton
The Criminal Defence Lawyer's Role, David Layton
Dalhousie Law Journal
Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …
Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii
Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii
Faculty Publications
This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
San Diego Law Review
This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …
The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington
The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington
University of Arkansas at Little Rock Law Review
No abstract provided.
Culture Clash: Teaching Cultural Defenses In The Criminal Law Classroom, Susan S. Kuo
Culture Clash: Teaching Cultural Defenses In The Criminal Law Classroom, Susan S. Kuo
Faculty Publications
In the law school classroom, the Socratic method of legal analysis removes a dispute at issue in a given case from its sociocultural context and takes the cultural backgrounds of the parties into account only when they serve the legal argument. The language of the law commands law students to siphon off the emotional and cultural content because of the enduring belief that the law is neutral and impartial. Accordingly, cultural conflicts are deemed irrelevant to legal analysis because laws are unbiased and culture-blind. This detached outlook has been termed perpectivelessness to denote a neutral, odorless, colorless non-perspective.
This essay …
Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii
Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii
Faculty Publications
Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently …
Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii
Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii
Faculty Publications
On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, a case that invalidated the Washington state sentencing guidelines and cast the validity of the Federal Sentencing Guidelines into grave doubt. On June 27, 2004, Professor Frank Bowman sent a memorandum to the United States Sentencing Commission analyzing the probable impact of Blakely on the federal guidelines and proposing a legislative modification of the Guidelines to render them compliant with Blakely. The proposal relies on the rule of McMillan v. Pennsylvania, 477 U.S. 79 (1986), and Harris v. United States, 536 U.S. 545 (2002), that post-conviction judicial findings …
Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii
Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii
Faculty Publications
This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …
The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler
All Faculty Scholarship
This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …
"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich
"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich
Faculty Scholarship
Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat.1 Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman …
The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura Gaston Dooley
The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura Gaston Dooley
Law Faculty Publications
No abstract provided.
Remarks At The Investiture Of Eric M. Freedman As The Maurice A. Deane Distinguished Professor Of Constitutional Law, November 22, 2004, Anthony G. Amsterdam
Remarks At The Investiture Of Eric M. Freedman As The Maurice A. Deane Distinguished Professor Of Constitutional Law, November 22, 2004, Anthony G. Amsterdam
Hofstra Law Review
No abstract provided.
Silence: Insolubly Ambiguous And Deadly: The Constitutional, Evidentiary And Moral Reasons For Excluding ‘Lack Of Remorse’ Testimony And Argument In Capital Sentencing Proceedings, Jules Epstein
Jules Epstein
No abstract provided.
Defending Imminence: From Battered Women To Iraq, Kimberly Kessler Ferzan
Defending Imminence: From Battered Women To Iraq, Kimberly Kessler Ferzan
All Faculty Scholarship
The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor's attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the …
Toward An Indigenous Jurisprudence Of Rape, Sarah Deer
Toward An Indigenous Jurisprudence Of Rape, Sarah Deer
Faculty Scholarship
This article sets forth some preliminary issues and perspectives for the development of indigenous models of rape jurisprudence. Part I examines the reasons for and importance of developing an indigenous jurisprudence of rape. Part II addresses tribal jurisdiction issues, particularly the current limitations on tribal authority. Part III provides a historical context for the issue, including examples of the role of colonization in the responses to sexual violence. Part IV shares some visions for the development of a contemporary jurisprudence of rape for indigenous nations.
Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber
Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber
Publications
Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …
A Different Kind Of Labor Law: Vagrancy Law And The Regulation Of Harvest Labor, 1913-1924, Ahmed A. White
A Different Kind Of Labor Law: Vagrancy Law And The Regulation Of Harvest Labor, 1913-1924, Ahmed A. White
Publications
No abstract provided.
United States V. Gayle, Christine Aubin
Sattazahn V. Pennsylvania: Double Jeopardy And The Definition Of "Acquittal" In Capital-Sentencing Proceedings, Matthew G. Howells
Sattazahn V. Pennsylvania: Double Jeopardy And The Definition Of "Acquittal" In Capital-Sentencing Proceedings, Matthew G. Howells
University of Richmond Law Review
No abstract provided.
New Technology, Old Defenses: Internet Sting Operations And Attempt Liability, Audrey Rogers
New Technology, Old Defenses: Internet Sting Operations And Attempt Liability, Audrey Rogers
University of Richmond Law Review
No abstract provided.
International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant
International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant
Faculty Scholarship
No abstract provided.
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Articles
No abstract provided.
Federalism And The Federal Criminal Law, Craig M. Bradley
Federalism And The Federal Criminal Law, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley
Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley
Scholarly Works
To cope more effectively with the changed landscape of child exploitation, it is necessary for laws to expand their extraterritorial reach. Some statutes in the “child exploitation arena” have already been ruled to apply extraterritorially. The prime example of this is 18 U.S.C. § 2252 (2004) (certain activities relating to the material involving the sexual exploitation of minors). Two of the more useful statutes in combating online pedophiles are 18 U.S.C. § 1470 (2003) (transfer of obscene materials to minors) and 18 U.S.C. § 2422 (2003) (coercion and enticement). These latter statutes, however, have yet to receive significant or …
Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts
Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny Roberts
Fordham Urban Law Journal
Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. Indeed, some states have heeded the call. But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to …