Criminal Law Commons^™

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 …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Cyberstalking, A New Crime: Evaluating The Effectiveness Of Current State And Federal Laws, Naomi Harlin Goodno

ExpressO

Imagine a distressed woman discovering the following message on the Internet that was falsely attributed to her: “Female International Author, no limits to imagination and fantasies, prefers group macho/sadistic interaction . . . stop by my house at [current address] . . . . Will take calls day or night at [current telephone number] . . . I promise you everything you ever dreamt about. Serious responses only.” This is an example of cyberstalking – which involves the use of the Internet, e-mail, or other means of electronic communication to stalk another individual. Current statistics suggest that tens of thousands …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Executive-Branch Regulation Of Criminal Defense Counsel, Darryl K. Brown

ExpressO

The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but does not contract. On this account, America’s excessive criminal codes are products of structural failures in political process and democratic institutions.

Yet this story fails to account for much of American criminal law policy and practice. As this article documents in the first systematic study of …

Rethinking Civil Contempt Incarceration, Jessica C. Kornberg

ExpressO

Under current federal law civil contempt is governed by the Federal Rules of Civil Procedure, yet it often results in incarceration. This incarceration can, and in a few cases has been, indefinite. The unlimited duration of civil contempt represents the pinnacle of judicial power, and yet it is a topic which has generated surprisingly little scholarship or case law. This Article explores the history and development of modern contempt law, and finds that while the federal law treats all civil contemnors equally, historically and in many states, contemnors are classified by the type of civil contempt committed. This Article proposes …

Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell

ExpressO

Before the civil war, “lynching” signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to “vigilante values,” that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially …

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 …

Stuck In The Thicket: Struggling With Interpretation And Application Of California's Anti-Gang Step Act, Martin Baker

ExpressO

California’s Street Terrorism Enforcement and Prevention Act (Penal Code Sections 186.20 et seq.) was enacted in 1988 in response to a perceived “state of crisis . . . caused by violent street gangs” throughout the state. The “STEP” Act created a distinct crime of active participation in a criminal street gang, as well as providing enhanced penalties for any crime committed with the intent to facilitate criminal gang activity.

Since its enactment, the poorly drafted Act—described by the California Supreme Court as a “thicket of statutory construction”—has produced an array of conflicting and vague appellate opinions. This article examines the …

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

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The Liberal Assault on the Fourth Amendment Christopher Slobogin As construed by the Supreme Court, the Fourth Amendment’s reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects–-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings …

Courts, Cops, Citizens, And Criminals, Justin David Heminger

ExpressO

The Supreme Court's 4-1-4 split decision in Missouri v. Seibert causes confusion with regard to question-first Miranda violations. Courts apply a Marks narrowest ground analysis to decide which opinion in Seibert is controlling. However, the majority approach to Seibert, which finds Justice Kennedy's concurrence controlling, is incorrect. Instead, lower courts should resolve question-first Miranda violations by applying legal principles expressed in the plurality's decision.

No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King

ExpressO

The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

Beyond Conspiracy? Anticipatory Prosecution And The Challenge Of Unaffiliated Terrorism, Robert Chesney

ExpressO

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be “forward-leaning” in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in …

Career Criminals Targeted: The Verdict Is In, California’S Three Strikes Law Proves Effective, Naomi Harlin Goodno

ExpressO

Being sentenced to life in prison for stealing a few video tapes or stealing golf clubs? These are few of the stories that are emphasized when criticizing California’s Three Strikes law. Since its inception, California’s Three Strikes law has generated controversy. Aimed at incarcerating career criminals, it has been tagged as one of the toughest “tough on crime” statutes in the country. It has been over a decade since the law was passed and this article explores why – contrary to most of the other academic discussions of the law— it has been and continues to be effective in dealing …

The Boundaries Of Plea Bargaining: Negotiating The Standard Of Proof , Talia Fisher

ExpressO

The paper explores the boundaries of the plea bargaining process, and makes a case for extending them to the criminal standard of proof. It examines the possibility of converting the criminal standard of proof into a default rule, subject to negotiation between the parties. Under current plea bargaining practices, the defendant agrees to plead guilty in exchange for concessions on punishment offered by the prosecutor. According to the model proposed here, the negotiation process would not be limited to the attainment of a full admission of guilt. Rather, the prosecutor would also be able to obtain from the defendant a …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Two Types Of Consequentialism, Two Types Of Formalism: Reconsidering Bordenkircher In Light Of Apprendi, Michael M. O'Hear

ExpressO

While the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue …

Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown

ExpressO

Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

Looting, Law, And Lawlessness, Stuart Green

ExpressO

As recent incidents in the wake of Hurricane Katrina and other natural and man-made disasters have illustrated, the moral content of looting spans an extraordinarily wide continuum: At one end are predatory and exploitative acts that seem deserving of even greater punishment than ordinary acts of burglary and larceny. At the other end are cases of necessity, involving otherwise law-abiding citizens who, as a result of forces beyond their control, find themselves hungry and exposed to the elements. In between these two poles lies a wide range of conduct that often involves impoverished and alienated citizens living on the edges …

Malibu Locals Only: "Boys Will Be Boys", Or Dangerous Street Gang? Why The Criminal Justice System's Failure To Properly Identify Suburban Gangs Hurts Efforts At Fighting Gangs, Brian William Ludeke

ExpressO

In the last several years, a group of youths calling themselves Malibu Locals Only or MLO has performed several violent crimes, intimidating many people in the area around Malibu, CA. Despite the gang-like appearance of these youths and their crimes, Los Angeles County Sheriff's Department officials insist that MLO is not a gang. This article examines MLO, its history, and its current state in the context of California anti-gang legislation.

The article theorizes that the criminal justice system's failure to call a group like MLO a gang while waging war on other groups, primarily in lower income, heavily minority areas, …

The Place Of Covert Policing In Democratic Societies: An Empirical Study Of The U.S. And Germany, Jacqueline E. Ross

ExpressO

My study of undercover policing explores the ways in which democratic legal systems change when they legalize highly contested police practices that have long been quietly tolerated and accorded minimal scrutiny. Undercover policing is a prime of example of such a practice. It has long been subject to remarkably little legislative oversight and systematic regulation in the United States and Western Europe. It exists in a twilight of legality—a necessary evil, but one inviting anxieties about its legitimacy and consonance with the rule of law. Under pressure from the European Court of Human Rights, Germany (along with other Western European …

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Suspicionless Canine Sniffs: Does The Fourth Amendment Prohibit Public Schools From Using Dogs To Search Students Without Individualized Suspicion?, Todd J. Feinberg

ExpressO

Drugs plague our nation’s schools. Since traditional methods of fighting the problem are proving ineffective, some schools are trying new approaches. One such approach is using specially trained dogs to indiscriminately sniff students for the presence of illegal drugs. Using dogs to sniff students is controversial and has sparked a constitutional debate. The Supreme Court has not expressly ruled on whether suspicionless canine sniffs violate a public school student’s Fourth Amendment protection against unreasonable searches. In fact, the Court has acted in a manner that actually increases uncertainty around the issue. This uncertainty makes employing suspicionless canine sniffs difficult for …

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff

ExpressO

Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …