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A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock 2018 University of Southern California Law

A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock

Emily Ryo

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.


The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns 2018 J.D., Pepperdine University School of Law

The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns

Pepperdine Law Review

The Armed Career Criminal Act and United States Sentencing Guidelines prescribe sentence enhancements based upon a defendant’s prior convictions. In particular, these federal sentencing tools contain violent felony provisions that outline the requirements a state criminal statute must satisfy for a conviction to constitute a violent felony, making the convicted person eligible for a federal sentence enhancement. However, the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S. Ct. 2551 (2015) severely limited the scope of both sentencing tools’ violent felony provisions, making it more difficult for ...


Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney 2018 J.D. Candidate, 2017, Pepperdine University School of Law

Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney

Pepperdine Law Review

In 2018, many believe that slavery is an antiquated concept. But as with anything else, if it has not become extinct, it has evolved with time. Human trafficking is no different. Each year, millions of men, women and children are trafficked in the United States, and internationally, and forced to work against their will. Through the rise of technology and an increasingly globalized world, traffickers have learned to use technology as a tool to help facilitate the trafficking of persons and to sell those victims to others they never could have reached before. But what are we doing about it ...


The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad 2018 University of San Diego

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with ...


Preventing Drug-Related Deaths At Music Festivals: Why The "Rave" Act Should Be Amended To Provide An Exception For Harm Reduction Services, Robin Mohr 2018 Chicago-Kent College of Law

Preventing Drug-Related Deaths At Music Festivals: Why The "Rave" Act Should Be Amended To Provide An Exception For Harm Reduction Services, Robin Mohr

Chicago-Kent Law Review

No abstract provided.


Poor Wesley Hohfeld, Peter Westen 2018 University of San Diego

Poor Wesley Hohfeld, Peter Westen

San Diego Law Review

John Wesley Hohfeld has lost one audience and gained another in the century since he published his seminal Fundamental Legal Conceptions in 1919. Hohfeld originally conceived of his work as an aide to lawyers and law students. And law faculties initially embraced him enthusiastically. Over time, however, law faculties have lost interest in Hohfeld, and moral philosophers have taken their place, such that it is difficult to read widely nowadays in moral theory regarding war and self defense without coming across supportive references to Hohfeld. Unfortunately moral theorists too often invoke Hohfeld for propositions that he explicitly disavowed. Using Uwe ...


Self-Defense And Culpability: Fault Forfeits First, Richard J. Arneson 2018 University of San Diego

Self-Defense And Culpability: Fault Forfeits First, Richard J. Arneson

San Diego Law Review

Under what conditions is it morally permissible to kill someone in order to save your own life—or the life of another who is threatened? There seem to be clear cases. Threatened by an assailant who is trying to kill you for no good reason, you may use lethal force if necessary to save yourself from death or serious injury from the assailant’s attack. Threatened with death in the form of an onrushing runaway truck, you may not save yourself by using a bystander or imposing on a bystander in a way that inflicts severe harm on her. In ...


The Need To Attend To Probabilities—For Purposes Of Self-Defense And Other Preemptive Actions, Larry Alexander 2018 University of San Diego

The Need To Attend To Probabilities—For Purposes Of Self-Defense And Other Preemptive Actions, Larry Alexander

San Diego Law Review

I was not certain I was going to write something for this symposium. After all, I had written a lot on the topic of self-defense, so what was there left to say that I had not said before? I have concluded, however, after reading a new generation of literature on self-defense, that most who write on the topic neglect its perhaps most important aspect, namely, that it is a preemptive action. As a preemptive action, self-defense perforce takes place before the attack to which it is a response occurs. This preemptive aspect of self-defense brings with it a nest of ...


Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan 2018 University of San Diego

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

San Diego Law Review

Assume Culpable Aggressor threatens Innocent Victim with a knife. Victim is stronger than Culpable Aggressor and is able to defend herself by punching Culpable Aggressor in the face, causing him to stumble back and drop the knife. Not only was this action necessary, but also Victim believed it to be so to save her life.

I take it that this is an uncontroversial case of self-defense. My question is whether this is also a case of punishment. Uwe Steinhoff suggests that it might be. Indeed, he states that “nothing hinders an act from being both punitive and defensive. In fact ...


The Vindication Of Good Over Evil: “Futile” Self-Defense, Douglas Husak 2018 University of San Diego

The Vindication Of Good Over Evil: “Futile” Self-Defense, Douglas Husak

San Diego Law Review

The burgeoning self-defense literature, like that in most areas of moral and legal philosophy, typically begins with and seeks to rationalize our intuitions. I submit that the intuitive judgment of virtually all respondents, at least initially, is that IV is permitted to exercise her right of self-defense, however futile, and scratch WA. This intuition, I believe, is incredibly powerful and robust; I certainly have it myself. Yet quite a few philosophers and legal theorists contend IV is not permitted to employ futile self-defense against WA. Presumably, they believe IV must passively accept her fate without injuring WA. Why hold this ...


Steinhoff And Self-Defense, Michael S. Moore 2018 University of San Diego

Steinhoff And Self-Defense, Michael S. Moore

San Diego Law Review

I shall first describe what moral combat would be if it existed, separate it into distinct species, and say why it is so undesirable that one should be brought to acknowledge its existence only reluctantly and as a last resort. I will then detail two ways in which rights to do things—often called “action rights” or “active rights”—such as the right to defend oneself, are integrated into standard deontic logic: (1) Hohfeld’s way and (2) the older but still popular Kantian alternative that Hurd and I recently defended. The first of these is compatible with—indeed, inviting ...


The Nature Of Self-Defense, Samuel C. Rickless 2018 University of San Diego

The Nature Of Self-Defense, Samuel C. Rickless

San Diego Law Review

What is self-defense? Most theorists of self-defense are mainly interested in explaining why and when we are morally justified in defending ourselves from a threat posed by another. The moral questions here are important, not just because self-defense represents an interesting moral conundrum, but because morality, at least in this case, is, or should be, a reliable guide to the law. So theorists of self-defense often start with paradigm cases—the culpable aggressor, the justified aggressor, the innocent aggressor, the innocent threat, and so on—and try to explain moral intuitions about them with the help of moral theory, whether ...


Self-Defense, Necessity, And The Duty To Compensate, In Law And Morality, Kenneth W. Simons 2018 University of San Diego

Self-Defense, Necessity, And The Duty To Compensate, In Law And Morality, Kenneth W. Simons

San Diego Law Review

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? Professor Uwe Steinhoff’s manuscript offers a distinctive and wide-ranging perspective on the controversial questions these privileges raise. This essay engages with a number of his arguments, particularly focusing on legal and moral duties of compensation.

First, this essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers ...


The Right To Cause Harm As An Alternative To Being Sacrificed For Others: An Exploration Of Agent-Rights With A Special Focus On Intervening Agency, Alec Walen 2018 University of San Diego

The Right To Cause Harm As An Alternative To Being Sacrificed For Others: An Exploration Of Agent-Rights With A Special Focus On Intervening Agency, Alec Walen

San Diego Law Review

My strategy for defending the right of non-sacrifice and the connected agent–patient inference is to move through a series of cases, starting with easy cases—clearly permissible acts of non-sacrifice—and moving to more controversial ones. The controversial cases are those in which intervening agency is central to explaining why an agent should have the right of non-sacrifice. My argument will not simply be an attempt to explain intuitions. I take the intuitions on the easy cases to be reliable, but once we move to controversial cases, I think moral intuitions become unreliable. My argument fundamentally trades on two ...


Unwitting Justification, Peter Westen 2018 University of San Diego

Unwitting Justification, Peter Westen

San Diego Law Review

An assailant is on the verge of shooting a hated rival, Jones, when Jones, oblivious to the attack, decides in that instant to kill his assailant, thereby becoming what commentators call an “unknowing self-defender” or “unwittingly justified actor.” By its terms, Jones is guilty of an impossibility attempt under the Model Penal Code because he satisfies all the elements of attempted murder under the Code. The question, which has divided commentators since George Fletcher and Paul Robinson’s debate in the 1970s, is whether Jones is also guilty of the completed crime of murder and whether the latter is the ...


Replies, Uwe Steinhoff 2018 University of San Diego

Replies, Uwe Steinhoff

San Diego Law Review

Many philosophers who write on self-defense tend to ignore the self-defense discussions offered by legal scholars, and accordingly they often ignore the law or pay insufficient attention to it. In my experience, this attitude stems from a misperception of legal scholarship as some kind of positivistic interpretation of legal documents and as positive law being irrelevant for deciding what the morally right answer to the issues raised by self-defense are. I find this attitude deplorable because legal scholarship, especially in the field of criminal law, is more often than not straightforward moral philosophy; and criminal law especially gives expression to ...


“Collusion” And The Criminal Law, Robert M. Sanger 2018 Santa Barbara College of Law

“Collusion” And The Criminal Law, Robert M. Sanger

Robert M. Sanger

The journalistic use of the term “collusion” in the air; it might be a good time for a refresher. This article will make an effort to cover the general framework of federal crimes in which a potential target (i.e., a would be defendant if a case were filed) had a guilty mind but did not directly do the ultimate act. Looked upon from the “collusion” perspective, it is a situation where a person did something with others in which some illegal result was attempted or accomplished by some or all of the participants. Broadly construed, inchoate crimes would include ...


Dunham (John) V. State, 134 Nev. Adv. Op. 68 (Sept. 6, 2018), Katrina Brandhagen 2018 University of Nevada, Las Vegas -- William S. Boyd School of Law

Dunham (John) V. State, 134 Nev. Adv. Op. 68 (Sept. 6, 2018), Katrina Brandhagen

Nevada Supreme Court Summaries

The Court determined that the word “resides” in NRS 205.067(5)(b) does not require that the owner of a dwelling live permanently or continuously in the dwelling. The Court also held that the sentence of a maximum of 96 months in prison with parole eligibility after 38 months imposed on the appellant when a jury convicted him of home invasion, was not cruel and unusual punishment.


A General Mitigation For Crimes Driven By Emotion?: Physiological, Personal Choice, And Normative Inquiries, Paul H. Robinson 2018 University of Pennsylvania Law School

A General Mitigation For Crimes Driven By Emotion?: Physiological, Personal Choice, And Normative Inquiries, Paul H. Robinson

Faculty Scholarship

It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all emotions. The mitigation would be limited, however, to those instances in which the jury finds that a mitigation is deserved upon taking account of the extent of the internal pressure to commit the offense (the physiological inquiry), the extent of the offender’s efforts to resist that pressure (the personal choice inquiry), and the effect of giving such a mitigation on community ...


Neurohype And The Law: A Cautionary Tale, Stephen J. Morse 2018 University of Pennsylvania Law School

Neurohype And The Law: A Cautionary Tale, Stephen J. Morse

Faculty Scholarship

This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.


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