Criminal Law Commons^™

Finding "Tapia Error": How Circuit Courts Have Misread 'Tapia V. United States' And Shortchanged The Penological Goals Of The Sentencing Reform Act, Matt J. Gornick

Vanderbilt Law Review

The American criminal justice system is called many things; "compassionate" is usually not one of them. Yet in the course of federal criminal proceedings, a sentencing hearing allows a judge to convey compassion toward a defendant, if only to say, "I'm sorry about your situation, but this is how I must apply the law." Likewise, a defendant might throw herself on the mercy of the court in hopes that the judge exercises discretion compassionately. Mitigating factors and downward departures suggest that judges are capable of doing so. But how does a sentencing judge show compassion, as opposed to simply feeling …

The Right To Domain Silent: Rebalancing Tort Incentives To Keep Pace With Information Availability For Criminal Suspects And Arrestees, Laura K. Mckenzie

Vanderbilt Law Review

One nondescript evening, Dale Menard waited in a park for a friend to pick him up.When his friend did not arrive on schedule, Menard looked into the window of a nearby retirement home to check the time. Shortly thereafter, Menard was arrested based on a resident's prowler report and held by the Los Angeles Police Department for two days. The arrest was based purely on a misunderstanding, and the LAPD never brought charges against Menard. The police did, however, forward his arrest record and fingerprints to the FBI as part of a routine record exchange. One misunderstanding culminated in extended …

Ukraine And The International Criminal Court: Implications Of The Ad Hoc Jurisdiction Acceptance And Beyond, Dr. Iryna Marchuk

Vanderbilt Journal of Transnational Law

The Article examines an array of important legal issues that arise out of the acceptance of the jurisdiction of the International Criminal Court by Ukraine, a non-State Party to the Rome Statute, within the framework of Article 12(3) with respect to the alleged crimes against humanity committed during the 2014 Maydan protests (Declaration I) and the alleged war crimes committed in eastern Ukraine and Crimea (Declaration II). It provides an in-depth analysis of constitutional law issues linked to the acceptance of the jurisdiction by Ukraine and discusses its possible implications on the proceedings before the ICC. The Article criticizes the …

Response: The Icc, Pre-Existing Jurisdictional Treaty Regimes, And The Limits Of The Nemo Dat Quod Non Habet Doctrine--A Reply To Michael Newton, Carsten Stahn

Vanderbilt Journal of Transnational Law

It is a pleasure and a privilege to provide a few reflections on Michael Newton's thought-provoking essay on "How the ICC Threatens Treaty Norms." His article marks an important piece of scholarship. It reflects significant concerns about the reach and function of the International Criminal Court (ICC) that merit further attention and explanation in ICC practice. Newton makes a provocative argument. He argues that the ICC might undermine sovereign law enforcement efforts and exceed its powers if it exercises jurisdiction over American forces in Afghanistan or Israeli offenses in the West Bank or the Gaza Strip. This argument is not …

The International Reach Of Criminal Copyright Infringement Laws, Sara K. Morgan

Vanderbilt Journal of Transnational Law

Piracy and illegal downloading in the Internet age have been on the forefront of the intellectual property community's mind since the early 2000s. Websites such as The Pirate Bay are often labeled as being leaders in copyright infringement, giving users the ability to illegally download thousands of files. However, there are both jurisdictional and extradition issues with prosecuting the founders of these websites, because The Pirate Bay and many others like it are often based in other countries. Recently, the Stop Online Piracy Act and PROTECT IP Act have stirred up controversy, with many alleging that their international reach went …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

How The International Criminal Court Threatens Treaty Norms, Michael A. Newton

Vanderbilt Journal of Transnational Law

This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim "nemo plus iuris transfer …

The Price Of Silence: How The Griffin Roadblock And Protection Against Adverse Inference Condemn The Criminal Defendant, Kelsey Craig

Vanderbilt Law Review

In 1965, the Supreme Court held in Griffin v. California that the Fifth Amendment privilege against compelled self-incrimination prohibits judges and prosecutors from pointing to a defendant's failure to testify as substantive evidence of guilt. This doctrine assumes that such a prosecutorial or judicial "adverse comment" compels a negative inference-that the defendant is hiding something. The Griffin Court held that this assumption amounts to an unfair penalty on a defendant's invocation of a constitutionally protected right. This doctrine, however, makes a dangerous misstep in additionally assuming that the prohibition of adverse comment and the administration of limiting instructions curtail a …