Legal History Commons^™

The Interpretive Authority Of Consensus In The Lower Courts, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Kentucky Criminal Law Reform In The Age Of Aquarius, Kurt X. Metzmeier

Kurt X. Metzmeier

A New Philosophy In The Supreme Court, Robert M. Sanger

Robert M. Sanger

The History Of Drug Control Laws: American Aspects, 9 J. Marshall J. Prac. & Proc. 46 (1975), Nicholas N. Kittrie

Nicholas Kittrie

No abstract provided.

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Amanda L Tyler

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion of how courts …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Anthony J. Bellia

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Kit Kinports

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

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

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 …

From Criminal Law To Urban Law And Policy: A Tribute To Professor Feridun Yenisey, Ryan Rowberry, Julian Juergensmeyer

Julian C. Juergensmeyer

No abstract provided.

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

Timothy P. O'Neill

No abstract provided.

How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, 55 St. Louis U. L.J. 953 (2011), Stuart K. Ford

Stuart Ford

No abstract provided.

On The Very Idea Of Transitional Justice, Jens Ohlin

Jens David Ohlin

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …

Confessions, Criminals, And Community, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson

Sheri Lynn Johnson

No abstract provided.

Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John H. Blume, Sheri Lynn Johnson

Sheri Lynn Johnson

Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. …

Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John Blume, Sheri Lynn Johnson

John H. Blume

Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. …

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.

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 …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

James L. Kainen

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

On The Virtues Of A Wild Justice, Michael Meltsner

Michael Meltsner

No abstract provided.

Lawyering In The Lion's Mouth: The Story Of S.D. Redmond And Pruitt V. State, Mary Ellen Maatman

Mary Ellen Maatman

Lawyering in the Lion’s Mouth: The Story of S.D. Redmond and Pruitt v. State unearths a forgotten case with facts worthy of a William Faulkner novel. Set in rural Mississippi, the case involved alleged interracial adultery and infanticide. Luella Williamson, a white woman who killed her baby, told authorities that an African American man named Ervin Pruitt was the child’s father, and claimed he told her to kill the child for fear he would be lynched. She pled guilty to murder and was sentenced to life imprisonment. Her alleged lover, who denied both the relationship and any involvement in the …

Habeas Corpus Reform In El Salvador, Mary Holper

Mary Holper

In this paper I compare the habeas corpus systems of El Salvador, the United States and Argentina. My purpose is to develop a general understanding of the procedure for bringing the writ in each country and analyze the substantive law governing the rights of habeas corpus petitioners in each country. I evaluate the systems against the backdrop of each country’s political and legal history with respect to the writ of habeas corpus. The ultimate aim of this paper is to reform the habeas corpus law of El Salvador by analyzing the Salvadoran system as compared to the Argentine and U.S. …

Fifteen Years And Death: Double Jeopardy, Multiple Punishments, And Extended Stays On Death Row, Michael J. Johnson

Michael P. Johnson

Fifteen Years and Death is a Note that considers a completely novel application of the Double Jeopardy Clause to excessive time on death row. Traditionally, death penalty opponents have attacked the now fifteen-year average wait time on death row as a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but this argument has fallen flat time and time again as courts have been reluctant to find merely living in prison to be “cruel” or “unusual.” Most courts do admit, however, that such time on death row does constitute some sort of punishment. As originally imagined, the Double …

The Anniversaries Of The Right To Counsel And Thecreation Of The Public Defender’S Office,, Robert Sanger

Robert M. Sanger

There has been much celebration this year of the 50th Anniversary of the Gideon decision1 rendered by the United States Supreme Court in March of 1963. Gideon guaranteed that indigent persons accused of crime would be entitled to representation. It has been said for some time now, that the full promise of Gideon has never been realized. Nevertheless, the right to counsel in criminal cases is an important constitutional right.

2013 also marks the 120th Anniversary of the first public proposal of a public defender system which was introduced in Chicago in 1893. It also marks the 99th anniversary of …

The Innocent Defendant’S Dilemma: An Innovative Empirical Study Of Plea Bargaining’S Innocence Problem, Lucian Dervan, Vanessa Edkins

Lucian E Dervan

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the …

Bargained Justice: Plea Bargaining's Innocence Problem And The Brady Safety-Valve, Lucian Dervan

Lucian E Dervan

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are …

Hearing On Stolen Or Counterfeit Goods Legislation, Lucian Dervan

Lucian E Dervan

On March 28, 2012, Professor Dervan was called to testify before the Subcommittee on Crime, Terrorism, and Homeland Security (Judiciary Committee, U.S. House of Representatives) and offer his thoughts regarding proposed counterfeit goods legislation (The Safe Doses Act (H.R. 4223) and the Counterfeit Drug Penalty Enhancement Act of 2011 (H.R. 3668)). In his prepared statement, Professor Dervan examines the phenomenon of overcriminalization, the collapse of mens rea, the true impact of increased statutory maximums, plea bargaining, and the continued deterioration of our constitutionally protected right to trial by jury. His closing remarks to the Committee offer a poignant critique of …