Criminal Law Commons^™

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

ExpressO

This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted in …

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Would Banning Firearms Reduce Murder And Suicide? A Review Of International Evidence, Don B. Kates, Gary A. Mauser

ExpressO

The world abounds in instruments with which people can kill each other. Is the widespread availability of one of these instruments, firearms, a crucial determinant of the incidence of murder? Or do patterns of murder and/or violent crime reflect basic socio-economic and/or cultural factors to which the mere availability of one particular form of weaponry is irrelevant?

This article examines a broad range of international data that bear on two distinct but interrelated questions: first, whether widespread firearm access is an important contributing factor in murder and/or suicide, and second, whether the introduction of laws that restrict general access to …

A Case For The Prosecution Of Kim Jong Il For Crimes Against Humanity, Genocide, And War Crimes , Grace M. Kang

ExpressO

This article provides a factual overview of the deplorable human rights situation in the Democratic People’s Republic of Korea (DPRK or North Korea). It shows how the International Criminal Court (ICC) could have jurisdiction over these crimes. It provides the legal framework for establishing individual criminal liability for the crimes under the ICC’s jurisdiction. It applies this framework and the legal standards for genocide, crimes against humanity, and war crimes to the facts existing in the DPRK, as provided by credible sources. It concludes that published facts indicate a reasonable basis to believe that Kim Jong Il, who controls the …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Who Are The Good Guys? The Legacy Of Watergate And The Tangled Webs We Weave, Jeffrey A. Breinholt

ExpressO

This article examines the astounding revelation that Deep Throat, the anonymous source that brought down the Nixon Presidency, was Mark Felt, the man who ran the FBI during the Watergate Scandal. Was Mark Felt a hero or a villain? Thanks to the recent publication of Bob Woodward’s The Secret Man in combination with historical case law, we now have more historical evidence about what motivated Felt and how he reacted to his own legal misfortunes. This article examines this record and shows that categorizing Felt along the hero/villain continuum is not an easy task, but argues that this type of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Is The End Of The War In Sight: An Analysis Of Canada’S Decriminalization Of Marijuana And The Implications For The United States “War On Drugs”, Kara Godbehere Goodwin

ExpressO

Discussion of marijuana decriminalization efforts by Canadian government and comparison of United States/Canadian drug legislation and healthcare. Public policy justifications are discussed as well as medical marijuana and effects of drug use on the two countries' prison and healthcare systems.

Rethinking Public Engagement In The Administrative State, Mariano-Florentino Cuellar

ExpressO

This Article presents an empirical, doctrinal, and theoretical critique of public engagement in the modern administrative state. The legitimacy of the administrative state depends on the claim that it provides opportunities for public engagement as well as a mechanism for expert scientific decisionmaking. A typical rulemaking proceeding lets experts make technical judgments about terrorism, transportation, or telecommunications subject to court review guarding against arbitrariness. The whole process is then enmeshed in a system that is supposed to provide engagement – and therefore democratic accountability -- through presidential appointments and control, congressional oversight, and the public notice-and-comment process. This existing approach …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War. The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.