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Articles 1 - 30 of 32
Full-Text Articles in Law
Year 2000 Overview: Governmental Responses To Pregnant Women Who Use Alcohol Or Other Drugs, Lynn M. Paltrow, David S. Cohen, Corinne A. Carey
Year 2000 Overview: Governmental Responses To Pregnant Women Who Use Alcohol Or Other Drugs, Lynn M. Paltrow, David S. Cohen, Corinne A. Carey
David S Cohen
No abstract provided.
Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii
Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii
Faculty Publications
On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …
The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy
The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy
Law and Contemporary Problems
Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in "Strickland" has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. Murphy reviews the right to counsel and discusses the crucial role of counsel in capital cases throughout the trial and appellate processes.
Having It All: Pleading Guilty Without Forfeiting The Right To Appeal, Gerald S. Reamey
Having It All: Pleading Guilty Without Forfeiting The Right To Appeal, Gerald S. Reamey
Faculty Articles
Pleading guilty and moving for an appeal of a pretrial suppression ruling has not been viewed as an efficient allocation of judicial resources. However, it is terribly inefficient to force the State to trial solely to preserve appeal rights on a pretrial objection. Attempts by courts and the legislature to balance these competing interests have produced a confusing and dangerous mix of contradictory rules.
Texas Rule of Appellate Procedure (TRAP) 25.2 is the latest iteration of such rules. Appeals may be taken following a negotiated guilty plea or nolo contendere plea, if “the substance of the appeal was raised by …
Avoiding The Appearance Of Judicial Bias: Allowing A Federal Criminal Defendant To Appeal The Denial Of A Recusal Motion Even After Entering An Unconditional Guilty Plea, Nancy B. Pridgen
Vanderbilt Law Review
One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. A suspect is charged with a federal crime, obtains legal counsel, and finds out who his judge will be. Because of a prominent rumor circulating in the community that the defendant once had an affair with the judge's wife, the defendant questions the judge's ability to be fair with him. He and his counsel file a timely motion for recusal under 28 U.S.C. § 455(a).' The …
Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder
Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder
Journal Articles
The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …
Detention Hearings, Tamar R. Birckhead, Wendy S. Wayne
Detention Hearings, Tamar R. Birckhead, Wendy S. Wayne
Tamar R Birckhead
No abstract provided.
The French Experience With Duty To Rescue: A Dubious Case For Criminal Enforcement, Edward A. Tomlinson
The French Experience With Duty To Rescue: A Dubious Case For Criminal Enforcement, Edward A. Tomlinson
Faculty Scholarship
No abstract provided.
Continuing Payment Of One's Debt To Society: The German Model Of Felon Disenfranchisement As An Alternative, Nora V. Demleitner
Continuing Payment Of One's Debt To Society: The German Model Of Felon Disenfranchisement As An Alternative, Nora V. Demleitner
Scholarly Articles
None available.
Not Twice For The Same: How The Dual Sovereignty Doctrine Is Used To Circumvent "Non Bis In Idem", Dax E. Lopez
Not Twice For The Same: How The Dual Sovereignty Doctrine Is Used To Circumvent "Non Bis In Idem", Dax E. Lopez
Vanderbilt Journal of Transnational Law
Today, it is quite possible for a criminal defendant who has violated the laws of several countries with one criminal act to be subject to multiple prosecutions. In situations where two countries share concurrent criminal jurisdiction, it is unclear whether the defendant would be able to rely on some level of double jeopardy protection. International law currently does not obligate a sovereign state to recognize another state's penal judgments, thus allowing states to prosecute a defendant regardless of any legal action that may have been previously taken against the defendant. Several countries, however, have chosen to provide defendants with at …
The Reach Of Icc Jurisdiction Over Non-Signatory Nationals, Jordan J. Paust
The Reach Of Icc Jurisdiction Over Non-Signatory Nationals, Jordan J. Paust
Vanderbilt Journal of Transnational Law
A new International Criminal Court (ICC) was created on July 17, 1998 under the Rome Statute adopted by the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court. Under the Statute, the ICC will have jurisdiction over crimes of genocide, certain crimes against humanity, and certain war crimes, leaving the crime of aggression for further definition.
Nonetheless, there are certain preconditions to the exercise of such jurisdictional competence, as noted especially in Articles 12-14 of the Statute. In general, the Court can exercise jurisdiction if a "situation" or case (1) is referred to the Prosecutor …
Filling In Some Pieces: The Supreme Court’S Criminal Law Decisions In The 1998-1999 Term, William E. Hellerstein
Filling In Some Pieces: The Supreme Court’S Criminal Law Decisions In The 1998-1999 Term, William E. Hellerstein
Touro Law Review
No abstract provided.
The Grand Jury And Exculpatory Evidence: Should The Prosecutor Be Required To Disclose Exculpatory Evidence To The Grand Jury, Ali Lombardo
The Grand Jury And Exculpatory Evidence: Should The Prosecutor Be Required To Disclose Exculpatory Evidence To The Grand Jury, Ali Lombardo
Cleveland State Law Review
In 1992, the United States Supreme Court ruled in United States v. Williams that the federal courts do not have the supervisory power to require prosecutors to present exculpatory evidence to the grand jury. This Note argues that the Williams decision is flawed because it diminishes crucial rights of defendants and because it prevents the grand jury from fulfilling its protective function. In Section II, this Note examines the historical background and purpose of the grand jury in England and America. Section III discusses the Williams decision and the rationale behind both the majority and dissenting opinions. It also discusses …
Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor
Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor
Touro Law Review
No abstract provided.
Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt
Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt
Faculty Scholarship
The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …
The Perils Of Public Opinion, Deborah W. Denno
The Perils Of Public Opinion, Deborah W. Denno
Hofstra Law Review
This article discusses the significance of Paul Robinson’s and John Darley’s book, Justice, Liability, and Blame: Community Views and the Criminal Law (“Justice”), and why the book is an excellent springboard for further research comparing community standards and legal codes. However, contrary to Justice’s conclusions, this article particularly emphasizes the perils of incorporating public opinion into the law based upon three major sources: (1) this article's own study of national and New Jersey demographic and political affiliation data, (2) the results presented in Justice, and (3) the results of public opinion research.
This article suggests that public opinion research may …
Meaning And Motive In The Law Of Homicide (Reviewing Samuel H. Pillsbury, Judging Evil: Rethinking The Law Of Murder And Manslaughter), Guyora Binder
Meaning And Motive In The Law Of Homicide (Reviewing Samuel H. Pillsbury, Judging Evil: Rethinking The Law Of Murder And Manslaughter), Guyora Binder
Book Reviews
Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications …
Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith
Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith
Journal Articles
This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …
Citius, Altius, Fortius? A Study Of Criminal Violence In Sports, Jack Anderson
Citius, Altius, Fortius? A Study Of Criminal Violence In Sports, Jack Anderson
Marquette Sports Law Review
No abstract provided.
The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan
The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan
Faculty Articles and Other Publications
International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the …
A Legal Giant Is Dead, Henry Paul Monaghan
A Legal Giant Is Dead, Henry Paul Monaghan
Faculty Scholarship
Herbert Wechsler died at his home on April 26, 2000. Two days later, the New York Times obituary's headline announced the passing of a "legal giant," a richly merited appellation. Herbert Wechsler was, I believe, the greatest academic figure in the history of Columbia Law School. At the height of his career, Herb stood at the top of three academic fields: criminal law, constitutional law, and federal jurisdiction. His achievements were, moreover, not confined to Columbia, the faculty of which he joined in 1933 after having served as law clerk to Justice Harlan Fiske Stone. From 1944 to 1946, Herb …
The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn
The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn
Vanderbilt Law School Faculty Publications
This Article has argued that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of …
Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden
Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden
Cleveland State Law Review
Part I of this Article examines the first question, what does it mean for evidence to have "apparent exculpatory value?" Part II of this Article answers the second question, when does Youngblood's bad faith requirement apply in failure to preserve evidence cases? Part III then seeks to determine the substance of Youngblood's bad faith requirement and identify the best approach to defining it. Ultimately, this Article argues that there are three common mistakes that courts make when applying Trombetta and Youngblood.
An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin
An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self-defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast …
Policing Women: Moral Arguments And The Dilemmas Of Criminalization., Naomi R. Cahn
Policing Women: Moral Arguments And The Dilemmas Of Criminalization., Naomi R. Cahn
GW Law Faculty Publications & Other Works
This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of motherhood to the criminalization of prostitution. This policing may be through the criminal law, civil law, or more subtly, through cultural attitudes that devalue women's work yet simultaneously encourage women to do that work. Hence, I argue that in order to sensitize, reform, and change the criminal justice system, it is critical to consider women's needs.
This essay also pays special attention to the impact of the criminal justice system on children. Specifically, I examine the …
Lay Perceptions Of Justice Vs. Criminal Law Doctrine: A False Dichotomy?, Dan M. Kahan
Lay Perceptions Of Justice Vs. Criminal Law Doctrine: A False Dichotomy?, Dan M. Kahan
Hofstra Law Review
No abstract provided.
Foreword: Is Justice Just Us?, Christopher Slobogin
Foreword: Is Justice Just Us?, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication and insanity defenses. In virtually every study, the authors found that the subjects disagreed with the Model Penal Code's position, the common law's position, or both. The authors contend that results of surveys such as theirs should play a significant role in designing criminal doctrine, both because …
A Call For Comment: Restyling And Amending The Federal Rules Of Criminal Procedure, David A. Schlueter
A Call For Comment: Restyling And Amending The Federal Rules Of Criminal Procedure, David A. Schlueter
Faculty Articles
In August 2000, the Judicial Conference’s Committee on Rules of Practice and Procedure published—for public comment—proposed amendments to the entire set of Federal Rules of Criminal Procedure. The proposals mark the culmination of a two-year project to “restyle” the rules—to modernize and reorganize and to make them internally consistent in format and style. Not since the rules were first promulgated in 1946 has there been such a significant change in the structure, format, and substance. This article first addresses the rule-making process for the Federal Rules of Criminal Procedure, and then examines the restyling process. Finally, it notes several of …
A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy
A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy
Faculty Scholarship
In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.