Law Commons^™

The Impact Of Joinder And Severance On Federal Criminal Cases: An Empirical Study, Andrew D. Leipold, Hossein A. Abbasi

Vanderbilt Law Review

Dave is in trouble. It was bad enough to be arrested for bank robbery; now he has learned that the prosecutor plans to join the current charge with three other, unrelated bank robberies and present all four counts in a single trial. To his priest and to his lawyer, Dave admits that he committed the first and the second robberies, but he did not commit the third or fourth. Dave is smart enough to realize, however, that once the jury starts hearing evidence of some of the crimes-all of which will sound quite similar-his ability to cast doubt on the …

Reasonable Suspicion And Mere Hunches, Craig S. Lerner

Vanderbilt Law Review

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they relied upon "specific, reasonable inferences," and not simply upon an "inchoate and unparticularized suspicion or 'hunch."' Since Terry, courts have strained to distinguish "reasonable suspicion," which is said to arise from the cool analysis of objective and particularized facts, from "mere hunches," which are said to be subjective, generalized, unreasoned and therefore unreliable. Yet this dichotomy between facts and intuitions is built on sand. Emotions and intuitions are not obstacles to reason, but indispensable heuristic devices that allow people to process diffuse, …

Criminalizing Marital Rape: A Comparison Of Judicial And Legislative Approaches, Theresa Fus

Vanderbilt Journal of Transnational Law

Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and …

Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Article offers a new way of thinking about over criminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by "fiat" alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing "fiat" from "structure," the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional …

"Eggshell" Victims, Private Precautions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by …

Criminal Defamation And The Evolution Of The Doctrine Of Freedom Of Expression In International Law, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

Restrictions on freedom of expression may take direct and indirect forms. A state may censor speech, criminalize defamation, harass the media or individual journalists, fail to investigate crimes against the media , require the compulsory licensing of journalists, or fail to enact freedom of information laws or laws that prohibit monopoly ownership of the media. A victim of a restriction on freedom of expression that violates international law may have no recourse in domestic courts, either because state law offers no remedy or because judges are too intimidated to enforce the laws as written. In such instances, victims need recourse …

Who's Afraid Of The Big Bad Wolf? The International Criminal Court As A Weapon Of Asymmetric Warfare, W. C. Austin

Vanderbilt Journal of Transnational Law

The United States is engaged in a war on terror against enemies who wage "asymmetric war" through terrorism, media manipulation, and "law-fare"---exploiting judicial processes to achieve political or military objectives.

This Article explores whether the fledgling International Criminal Court (ICC) could eventually be exploited by these groups as a tool of asymmetric "law-fare." It briefly traces the history of the ICC and recounts why the United States opposes the Court. Examining the methods of asymmetric war, the Authors then explore whether the ICC could be exploited by future asymmetric warriors.

The Authors describe three asymmetric methods that could be used …

Tarasoff As A Duty To Treat: Insights From Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In most jurisdictions, the Tarasoff duty is defined as a duty on the part of mental health professionals to act on patient threats of serious harm to identified individuals. Although breach of this duty has, to date, only led to civil liability, a good case can that it should lead to criminal liability as well, not just for something minor like a failure to report a potential crime, but for the felony committed by the patient. Furthermore, to the extent Tarasoff requires merely a warning after a serious threat to an identified victim, this civil and criminal liability could logically …

Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Adjudicative competence, more commonly referred to as competence to stand trial, is a highly under-theorized area of law. Though it is well established that, to be competent, a criminal defendant must have a "rational" as well as 'factual" understanding of her situation, the meaning of such "rational understanding" has gone largely undefined. Given the large number of criminal prosecutions in which competence is at issue, the doctrine's instability stands in stark contrast to its importance. This Article argues that adjudicative competence, properly understood, asks whether a criminal defendant has capacity to participate meaningfully in the host of decisions potentially required …

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

Vanderbilt Law School Faculty Publications

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.