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Articles 1 - 30 of 103
Full-Text Articles in Jurisprudence
The Life Of An Unknown Assassin: Leon Czolgosz And The Death Of William Mckinley, Cary Federman
The Life Of An Unknown Assassin: Leon Czolgosz And The Death Of William Mckinley, Cary Federman
Cary Federman
The purpose of this essay is to examine the discourses that surrounded the life of Leon Czolgosz, the assassin of President William McKinley. The gaps in Czolgosz’s life, his peculiar silences, his poor health and the ambiguity and thinness of his confession, rather than taken as instances of mental and physical distress, have, instead, been understood as signs of a revolutionary anarchistic assassin. Czolgosz is an expression of a cultural tradition in somatic form. I argue that the discursive construction of criminality, already present in the late nineteenth century within the medical and human sciences, is what shaped Czolgosz’s life …
Organizations As Evil Structures, Cary Federman, Dave Holmes
Organizations As Evil Structures, Cary Federman, Dave Holmes
Cary Federman
Nursing practice in forensic psychiatry opens new horizons in nursing. This complex, professional, nursing practice involves the coupling of two contradictory socioprofessional mandates: to punish and to provide care. The purpose of this chapter is to present nursing practice in a disciplinary setting as a problem of governance. A Foucauldian perspective allows us to understand the way forensic psychiatric nursing is involved in the governance of mentally ill criminals through a vast array of power techniques (sovereign, disciplinary, and pastoral), which posit nurses as “subjects of power.” These nurses are also “objects of power” in that nursing practice is constrained …
Habeas Corpus In The Age Of Guantánamo, Cary Federman
Habeas Corpus In The Age Of Guantánamo, Cary Federman
Cary Federman
The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then, I …
Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis
Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis
Charles C. Jalloh
This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall
Amy J. Sepinwall
Wrestling With Punishment: The Role Of The Bc Court Of Appeal In The Law Of Sentencing, Benjamin Berger, Gerry Ferguson
Wrestling With Punishment: The Role Of The Bc Court Of Appeal In The Law Of Sentencing, Benjamin Berger, Gerry Ferguson
Benjamin L. Berger
This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921. In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system …
Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger
Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger
Robert M. Sanger
Memory And Punishment, O. Carter Snead
Memory And Punishment, O. Carter Snead
O. Carter Snead
This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …
Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore
Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore
Steven E Gilmore
Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan
Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan
Donald J. Kochan
Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey
Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey
Russell D. Covey
The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …
Dividing Crime, Multiplying Punishments, John F. Stinneford
Dividing Crime, Multiplying Punishments, John F. Stinneford
John F. Stinneford
When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a …
The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill
The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill
Timothy P. O'Neill
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
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.
The International Criminal Court And Proximity To The Scene Of The Crime: Does The Rome Statute Permit All Of The Icc's Trials To Take Place At Local Or Regional Chambers?, 43 J. Marshall L. Rev. 715 (2010), Stuart K. Ford
Stuart Ford
No abstract provided.
To Furman Or Not To Furman, Robert M. Sanger
To Furman Or Not To Furman, Robert M. Sanger
Robert M. Sanger
In capital litigation, the United States Supreme Court in Furman v. Georgia and following cases required capital punishment systems to have a form of "narrowing" so that the death penalty was imposed only on the worst of the worst. The death penalty states have failed to successfully implement this concept. As a result, "narrowing" is currently raised in all capital cases by competent defense counsel both at trial and in post conviction litigation. It is raised in addition to all other issues, including issues related to the questions of whether exclusion from the death penalty should be expanded and whether …
A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith
A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith
Stephen F. Smith
No abstract provided.
Decisions Rules And Conduct Rules: On Acoustic Separation In Criminal Law, Meir Dan-Cohen
Decisions Rules And Conduct Rules: On Acoustic Separation In Criminal Law, Meir Dan-Cohen
Meir Dan-Cohen
No abstract provided.
Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer
Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer
Sarah Mourer
This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …
Dualism And Doctrine, Alex Stein, Dov Fox
Dualism And Doctrine, Alex Stein, Dov Fox
Alex Stein
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Donald J. Kochan
Cruelty In Criminal Law: Four Conceptions, Paulo Barrozo
Cruelty In Criminal Law: Four Conceptions, Paulo Barrozo
Paulo Barrozo
This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. No one should be neutral in relation to cruelty. Eminently, cruelty in criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of …
The One Or The Many, Jens David Ohlin
The One Or The Many, Jens David Ohlin
Jens David Ohlin
The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral …
The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume
The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume
John H. Blume
No abstract provided.
Troubled Waters: Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram
Troubled Waters: Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram
Hadar Aviram
On September 3, 2013, Diana Nyad reported having completed a 110-mile swim from Cuba to Florida. The general enthusiasm about her swim was not echoed in the marathon swimming community, whose members expressed doubts about the integrity and honesty of the swim. The community debate that followed gave rise to the creation of the Global Rules of Marathon Swimming, the first effort to regulate the sport. This Article uses the community’s reaction to Nyad’s deviance to examine the role that crime and deviance plays in the creation and modification of legal structures. Relying on Durkheim’s functionalism theory, the Article argues …
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 …
Reconstructing Constitutional Punishment, Paulo D. Barrozo
Reconstructing Constitutional Punishment, Paulo D. Barrozo
Paulo Barrozo
Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political …
What Is An Accident?, Daniel B. Yeager
What Is An Accident?, Daniel B. Yeager
Daniel B. Yeager
Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”
Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of Responsibility …
Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin
Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin
Bailey H. Kuklin
No abstract provided.
"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch
"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch
Michael L Perlin
Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.
Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …