Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network™

Open Access. Powered by Scholars. Published by Universities.®

Duke Law

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 691 - 720 of 1182

Full-Text Articles in Entire DC Network

Aggregation In Criminal Law, Brandon L. Garrett Jan 2007

Aggregation In Criminal Law, Brandon L. Garrett

Faculty Scholarship

This Article considers aggregation in criminal law. In criminal law, fundamental constitutional rights to an individual day in court sharply limit the occurrence of procedural aggregation, such as joinder, during trials. By way of contrast, in civil cases, courts permit a range of aggregate litigation, including consolidation and class actions. Nevertheless, the boundaries between civil and criminal law approaches to aggregation are more permeable than conventionally understood. Courts now aggregate criminal cases, and they do so without violating constitutional rights, by joining cases only before trial and during appeals. I present five case studies examining novel aggregative procedures that courts …


Structural Reform Prosecution, Brandon L. Garrett Jan 2007

Structural Reform Prosecution, Brandon L. Garrett

Faculty Scholarship

In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors adopted a bold new prosecutorial strategy under which dozens of leading corporations entered into demanding settlements, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co, Monsanto, and Time Warner. To situate the DOJ's latest strategy, I frame alternatives to the pursuit of structural reform remedies …


Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami Jan 2007

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …


The Federal Judicial Power And The International Legal Order, Curtis A. Bradley Jan 2007

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell Jan 2007

Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell

Faculty Scholarship

Present sentencing law in criminal cases of financial reporting fraud is embarrassingly flawed. The problem is urgent given that courts are now regularly sentencing corporate offenders, sometimes (but sometimes not) to extremely punitive terms of imprisonment. Policing of fraud by multiple jurisdictions in a federal system means that principled sentencing law is necessary not only for first-order policy reasons but also for coordination of sanctioning efforts. Proportionality and rationality demand that sentencing law have an agreed scale for measuring cases of financial reporting fraud in relation to each other, a sound methodology for fixing a given case on that scale, …


Purposes And Effects In Criminal Law, Samuel W. Buell Jan 2007

Purposes And Effects In Criminal Law, Samuel W. Buell

Faculty Scholarship

This brief comment, published in the Virginia Law Review's online companion, responds to Richard Bierschbach's and Alex Stein's article, Mediating Rules in Criminal Law.


Applying The Access Principle In Law: The Responsibilities Of The Legal Scholar, Richard A. Danner Jan 2007

Applying The Access Principle In Law: The Responsibilities Of The Legal Scholar, Richard A. Danner

Faculty Scholarship

This article applies to legal scholarship the ideas developed and argued in John Willinsky’s 2006 book: 'The Access Principle: The Case for Open Access to Research and Scholarship' regarding the responsibilities of scholars to make their works widely available through open access mechanisms via the Internet. Willinsky’s access principle states that “A commitment to the value and quality of research carries with it a responsibility to extend the circulation of such work as far as possible and ideally to all who are in interested in it and all who might profit by it.” For Willinsky, the transformation of scholarly journals …


Bad Nature, Bad Nurture, And Testimony Regarding Maoa And Slc6a4 Genotyping In Murder Trials, Nita A. Farahany, William Bernet, Cindy L. Vnencak-Jones, Stephen A. Montgomery Jan 2007

Bad Nature, Bad Nurture, And Testimony Regarding Maoa And Slc6a4 Genotyping In Murder Trials, Nita A. Farahany, William Bernet, Cindy L. Vnencak-Jones, Stephen A. Montgomery

Faculty Scholarship

Recent research—in which subjects were studied longitudinally from childhood until adulthood—has started to clarify how a child’s environment and genetic makeup interact to create a violent adolescent or adult. For example, male subjects who were born with a particular allele of the monoamine oxidase A gene and also were maltreated as children had a much greater likelihood of manifesting violent antisocial behavior as adolescents and adults. Also, individuals who were born with particular alleles of the serotonin transporter gene and also experienced multiple stressful life events were more likely to manifest serious depression and suicidality. This research raises the question …


Gender Performance Over Job Performance: Body Art Work Rules And The Continuing Subordination Of The Feminine, Lucille M. Ponte, Jennifer L. Gillan Jan 2007

Gender Performance Over Job Performance: Body Art Work Rules And The Continuing Subordination Of The Feminine, Lucille M. Ponte, Jennifer L. Gillan

Duke Journal of Gender Law & Policy

No abstract provided.


What Lawyers, What Edge?, Michael E. Tigar Jan 2007

What Lawyers, What Edge?, Michael E. Tigar

Faculty Scholarship

No abstract provided.


Criminal Procedure Within The Firm, Samuel W. Buell Jan 2007

Criminal Procedure Within The Firm, Samuel W. Buell

Faculty Scholarship

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual …


Felon Disenfranchisement In Alaska And The Voting Rights Act Of 1965, Christopher R. Murray Dec 2006

Felon Disenfranchisement In Alaska And The Voting Rights Act Of 1965, Christopher R. Murray

Alaska Law Review

No abstract provided.


“If You Knew Him Like I Did, You’D Have Shot Him, Too …” A Survey Of Alaska’S Law Of Self-Defense, James Fayette Dec 2006

“If You Knew Him Like I Did, You’D Have Shot Him, Too …” A Survey Of Alaska’S Law Of Self-Defense, James Fayette

Alaska Law Review

No abstract provided.


Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson Oct 2006

Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson

Duke Law Journal

No abstract provided.


Gender, Persecution, And The International Criminal Court: Refugee Law’S Relevance To The Crime Against Humanity Of Gender-Based Persecution, Valerie Oosterveld Oct 2006

Gender, Persecution, And The International Criminal Court: Refugee Law’S Relevance To The Crime Against Humanity Of Gender-Based Persecution, Valerie Oosterveld

Duke Journal of Comparative & International Law

No abstract provided.


Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow Oct 2006

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Duke Law Journal

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …


Mens Rea In Alaska: From Bad Thoughts To No Thoughts?, Lee Perla Jun 2006

Mens Rea In Alaska: From Bad Thoughts To No Thoughts?, Lee Perla

Alaska Law Review

No abstract provided.


Shielding Journalist-“Bloggers”: The Need To Protect Newsgathering Despite The Distribution Medium, Laura Durity Apr 2006

Shielding Journalist-“Bloggers”: The Need To Protect Newsgathering Despite The Distribution Medium, Laura Durity

Duke Law & Technology Review

The failure to agree on a sufficiently narrow definition of "journalist" has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of "journalist" can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits …


Behavioral Genetics And Crime, In Context, Owen D. Jones Apr 2006

Behavioral Genetics And Crime, In Context, Owen D. Jones

Law and Contemporary Problems

Jones explains the relationship between behavioral genetics and other disciplines in behavioral biology. He compares the potential contributions of behavioral genetics and behavioral ecology and suggests how the diverging efforts could be joined. He also notes that criminal law is but one of many fields of law potentially affected by behavioral genetics.


The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen Rothenberg, Alice Wang Apr 2006

The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen Rothenberg, Alice Wang

Law and Contemporary Problems

Rothenberg and Wang discuss the broader social implications of researching traits of interest to the criminal law. They consider the social impact for those who participate in behavioral genetics studies, particularly when such research focuses on behaviors related to conduct such as addiction.


Foreword, Nita A. Farahany Apr 2006

Foreword, Nita A. Farahany

Law and Contemporary Problems

No abstract provided.


Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, And Law, Brent Garland, Mark S. Frankel Apr 2006

Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, And Law, Brent Garland, Mark S. Frankel

Law and Contemporary Problems

Garland and Frankel issue a call for scientists, lawyers, courts and lawmakers to begin a critical dialogue about the implications of scientific discoveries and technological advances in criminal law, behavioral genetics and neuroscience.


Genetics And Responsibility: To Know The Criminal From The Crime, Nita A. Farahany, James E. Coleman Jr. Apr 2006

Genetics And Responsibility: To Know The Criminal From The Crime, Nita A. Farahany, James E. Coleman Jr.

Law and Contemporary Problems

No abstract provided.


Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse Apr 2006

Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse

Law and Contemporary Problems

In light of the abundance of studies focusing on the genetic contributions to addiction, Morse develops a meaningful background on the legal and scientific images of behavior, the disease concept of addiction, and the aspects of addiction for which a person may be held legally accountable.


Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno Apr 2006

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Law and Contemporary Problems

In 1994, convicted murderer Stephen Mobley became a cause celebre when he appealed his death sentence before the Georgia Supreme Court in the case of Mobley v. State. Denno describes the potential implications arising from the high-profile case of Stephen Mobley. He sought to introduce a then-cutting-edge theory that violence could be based on a genetic or neurochemical abnormality as mitigating evidence during capital sentencing.


Behavioral Genetics Research And Criminal Dna Databases, D. H. Kaye Apr 2006

Behavioral Genetics Research And Criminal Dna Databases, D. H. Kaye

Law and Contemporary Problems

Kaye discusses DNA databanks and the potential use of such databanks for behavioral genetics research. He addresses the concern that DNA databanks serve as a limitless repository for future research and that the samples used in the databanks could be used for research into a crime gene.


Genetic Predictions Of Future Dangerousness: Is There A Blueprint For Violence?, Erica Beecher-Monas, Edgar Garcia-Rill Apr 2006

Genetic Predictions Of Future Dangerousness: Is There A Blueprint For Violence?, Erica Beecher-Monas, Edgar Garcia-Rill

Law and Contemporary Problems

Beecher-Monas and Garcia-Rill consider the unfortunate probability that behavioral genetics evidence will be misused to substantiate predictions of future dangerousness.


The Media As Participants In The International Legal Process, Monica Hakimi Apr 2006

The Media As Participants In The International Legal Process, Monica Hakimi

Duke Journal of Comparative & International Law

No abstract provided.


Who Is In Charge, And Who Should Be? The Disciplinary Role Of The Commander In Military Justice Systems, Lindsy Nicole Alleman Apr 2006

Who Is In Charge, And Who Should Be? The Disciplinary Role Of The Commander In Military Justice Systems, Lindsy Nicole Alleman

Duke Journal of Comparative & International Law

No abstract provided.


Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller Jan 2006

Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller

Faculty Scholarship

This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court’s decision in Crawford v. Washington (2004) that dramatically …