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The Allen Instruction In Criminal Cases: Is The Dynamite Charge About To Be Permanently Defused?, Paul Marcus Sep 2019

The Allen Instruction In Criminal Cases: Is The Dynamite Charge About To Be Permanently Defused?, Paul Marcus

Paul Marcus

No abstract provided.


Parsing The Behavioral And Brain Mechanisms Of Third-Party Punishment, Owen D. Jones, Matthew Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Rene Marois Apr 2019

Parsing The Behavioral And Brain Mechanisms Of Third-Party Punishment, Owen D. Jones, Matthew Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Rene Marois

Owen Jones

The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood.

Using a brain-scanning technique known as functional magnetic resonance imaging (fMRI), we implemented a novel experimental design to ...


Predicting Danger In Immigration Courts, Emily Ryo Dec 2017

Predicting Danger In Immigration Courts, Emily Ryo

Emily Ryo

Every year, the US government detains thousands of noncitizens in removal proceedings on the basis that they might pose a threat to public safety if released during the pendency of their removal proceedings. Using original audio recording data on immigration bond hearings, this study examines immigration judges’ determinations regarding which noncitizens pose a danger to the community. My multivariate analysis that controls for a variety of detainee background characteristics and criminal conviction-related measures produced three main findings. First, I find that Central Americans are more likely to be deemed dangerous than non-Central Americans. Second, I find that detainees with attorneys ...


Procedural Due Process Claims, Erwin Chemerinsky Jun 2017

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco Dec 2016

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Palma Paciocco

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing ...


Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco Dec 2016

Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco

Palma Paciocco

Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook ...


Praise Defenders, Not Just Prosecutors, Stephen E. Henderson Nov 2015

Praise Defenders, Not Just Prosecutors, Stephen E. Henderson

Stephen E Henderson

In this letter to the editor, I discuss the problems when a district court judge becomes a graduate and class spokesperson for a Citizens' Police Academy.

See article here.
See letter here.


The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson Sep 2015

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
This vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in ...


Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin Jun 2015

Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin

Kim D. Chanbonpin

No abstract provided.


New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill May 2015

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.


Symbol And Substance In The Massachusetts Commission Report, Franklin E. Zimring May 2015

Symbol And Substance In The Massachusetts Commission Report, Franklin E. Zimring

Franklin E. Zimring

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.


Sentencing Trends For Economic Crime, Robert Sanger Feb 2015

Sentencing Trends For Economic Crime, Robert Sanger

Robert M. Sanger

Economic crime is something that intersects with the work of many practitioners, whether corporate counsel, business lawyers, civil litigators, estate planners, or family lawyers. As many know, the United States Sentencing Guidelines (“Guidelines”) have treated economic crimes with stiff guideline sentences. When the amount of intended loss rises, the sentences accelerate to the level of being extremely harsh. The United States Sentencing Commission has just published the results of their study of sentencing for economic crimes as applied in practice.The Guidelines have been declared to be advisory by the United States Supreme Court in United States v. Booker, 543 ...


Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise Feb 2015

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise

Michael Heise

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000. Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We considered whether ...


The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele Feb 2015

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the ...


Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie Dec 2014

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Jeffrey J. Rachlinski

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results ...


Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson Dec 2014

Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.


Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie Dec 2014

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Sheri Lynn Johnson

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results ...


The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson Dec 2014

The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.


Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma Marouf Aug 2014

Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma Marouf

Fatma Marouf

This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and ...


Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen Aug 2014

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

James L. Kainen

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on ...


Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The , James L. Kainen Aug 2014

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The , James L. Kainen

James L. Kainen

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far overlooked ...


“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo Apr 2014

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the ...


Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett Oct 2013

Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett

Amy Coney Barrett

The Catholic Church’s opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church’s teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be ...


Border Searches In The Age Of Terrorism, Robert M. Bloom Oct 2013

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns ...


The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe Dec 2012

The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe

Scott W. Howe

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. The deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet ...


Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson Oct 2012

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.


Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown Nov 2011

Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown

George D. Brown

In this Article, Professor Brown examines the issues that federal prosecutions of state and local officials pose. The analysis focuses on prosecutions under the mail fraud statute and considers the general debate over the proper scope of federal criminal law. Professor Brodin addresses the question of whether a re-examination of mail fraud would focus on constitutional or statutory issues and by utilizing the Supreme Court case United States v. Lopez examines the question of internal limits on the mail fraud statute.


Border Searches In The Age Of Terrorism, Robert M. Bloom Oct 2011

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert M. Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns ...


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Oct 2011

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Robert M. Bloom

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Oct 2011

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

R. Michael Cassidy

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...