Law Commons^™

Federalization’S Folly, Stephen F. Smith

San Diego Law Review

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the “federalization” of criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land—and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing district attorney”—that is to …

Reconciling Brady And Pitchess: Association For Los Angeles Deputy Sheriffs V. Superior Court, And The Future Of Brady Lists, Ryan T. Cannon

San Diego Law Review

In 2014, the Los Angeles County Sherriff’s Department (LASD) joined a growing number of law enforcement agencies utilizing “Brady lists”; a system by which prosecutorial agencies are notified of potential Brady/Giglio material in a police officer’s personnel file. These lists enable prosecutors to comply with their constitutional Brady disclosure obligations—to turn over all evidence material to guilt or punishment, including impeachment material. However, in 1978 California made the contents of police officer personnel files confidential with the passage of the Pitchess statutes. Since that time, California courts have wrestled with the extent of allowable disclosure under the Pitchess statutes, including …

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 the …

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 …

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 Hohfeldian, utilitarian, …

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 …

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 whether private …

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 of—moral combat, whereas the …

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, …

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 more …

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 …

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 thoughts: (1) there …

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 a justly …

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 …

Pokémon Go Away: Augmented Reality Games Pose Issues With Trespass And Nuisance, Kate Motsinger

San Diego Law Review

To illustrate the necessity of a permanent remedy—a virtual prescriptive easement—this Comment begins by exploring the origins of AR games in Part II and providing an overview of the mechanics of the most popular AR mobile game, Pokémon Go, as well as the types of AR games and technology currently in development. Part III then considers different causes of action that individuals might bring against creators of AR mobile games under the doctrines of trespass and nuisance, respectively. After weighing the merits and pitfalls of each claim in Part III, this Comment submits that a virtual prescriptive easement is the …

Extending Miranda: Prohibition On Police Lies Regarding The Incriminating Evidence, Rinat Kitai-Sangero

San Diego Law Review

This Article addresses the question of whether lying to suspects during interrogations regarding the incriminating evidence against them is a legitimate deceit. The search for truth goes hand-in-hand with the human yearning for knowledge. Generally, lying is perceived as reprehensible. Certain types of lies, such as those concerning medical treatment or the sale of a house, may even result in civil or criminal liability. Despite the condemnation of lying, lying to suspects during interrogations is a common phenomenon, and has even been dubbed an “art.” Part II of the article presents how police use deceit and lies during interrogations in …

The History And Future Of Capital Punishment In The United States, Robert A. Stein

San Diego Law Review

It is a great pleasure to be with you today to deliver the 2016 Nathaniel Nathanson Lecture. I am delighted to join the many distinguished jurists and scholars that have delivered this Lecture in prior years. Early in his career, Professor Nathanson clerked for Justice Louis Brandeis and served the Securities and Exchange Commission in its formative days. Professor Nathanson is deservedly viewed as one of the architects of modern administrative law. His work, Administrative Discretion in the Interpretation of Statutes,was monumental in the field of administrative law. Professor Nathanson was the first scholar to identify a “principle of limited …

Negotiating The Terms Of Corporate Human Rights Liability Under Federal Law, R. George Wright

San Diego Law Review

This Article first addresses, by way of example, questions of mens rea, or required mental states, through the basic purposes and relevant assumptions underlying general tort and criminal law. Whichever approach the law adopts, with or without negotiation, toward corporate aiding and abetting liability in human-rights-oriented torts cases should at least be generally compatible with these basic purposes and assumptions. Next, this Article addresses several possible approaches to the mens rea issues before adopting a model of negotiation or bargaining bounded by general moral constraints.

Secondly, this Article discusses a number of issues associated with the Alien Tort Statute ATS …

Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, And Other Difficulties Of “Affirmative Consent” In The Ali’S Draft Sexual Assault Provisions, Kevin Cole

San Diego Law Review

The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy …

A Reason To Resist: The Use Of Deadly Force In Aiding Victims Of Unlawful Police Aggression, Kindaka Sanders

San Diego Law Review

Some two and a half years before the fatal shooting of Michael Brown by a Ferguson, Missouri Police Officer, the Indiana State Legislature enacted Indiana Code § 35-41-3-2 authorizing the use of force, including deadly force against public servants acting unlawfully against the persons or property of Indiana citizens. The statute, passed in March of 2012, is the first of its kind. It was passed in reaction to the Indiana Supreme Court's decision in Barnes v. State, which abolished the common law right to resist an unlawful arrest. Gun rights groups, most notably the National Rifle Association (NRA), responded in …

Rosemond, Mens Rea, And The Elements Of Complicity, Kit Kinports

San Diego Law Review

The confluence of two widely invoked federal statutes—one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug trafficking crime—reached the Supreme Court this past term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. This Article attempts …

The Punishment Should Fit The Crime—Not The Prior Convictions Of The Person That Committed The Crime: An Argument For Less Impact Being Accorded To Previous Convictions, Mirko Bagaric

San Diego Law Review

The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders …

Shame, Memory, And The Unspeakable: The International Criminal Court As Damnatio Memoriae, Michael Blake

San Diego Law Review

The first [part] will discuss two ways of looking at the court and why the conventional justifications of punishment might not be adequate to justify what the court is doing. The second will examine the issue of the politically unspeakable and argue that the court’s mandate might indeed be the responsibility of making certain ideas and persons politically shameful. The final Part will try to give some justification for the claim that this mandate might give rise to a justification for the court’s existence. On the account I provide here, even if the court could not be justified with reference …

Sharpening The Tools Of An Adequate Defense: Providing For The Appointment Of Experts For Indigent Defendants In Child Death Cases Under Ake V. Oklahoma, Laurel Gilbert

San Diego Law Review

This Comment proposes that because of ongoing concerns regarding the reliability and validity of forensic science in the United States, the Due Process Clause constitutionally mandates the appointment of forensic experts for indigent defendants in criminal cases arising out of a child’s death if the prosecution relies on forensic evidence. Part II of this Comment provides an overview of the current law governing the admissibility of forensic expert testimony in criminal cases and explains why these admissibility standards create a need for the appointment of defense forensic experts to protect the rights of criminal defendants. Part III then discusses Due …

Wrongful Death And Survival Actions For Torts In Violation Of International Law, Alastair J. Agcaoili

San Diego Law Review

This Article aims to make sense of this neglected area of ATS law. I contend that the salient issue in these deceased-victim cases is not whether the nonvictim plaintiffs have standing to sue but rather whether they have a viable cause of action in the first place. Standing and cause of action concepts have an uneasy relationship in law. Although the distinction between constitutional standing and cause of action inquiries is well established, the division is less clear where, as here, standing doctrine is used to define a plaintiff’s eligibility to bring suit. Indeed, reliance on standing terminology in this …

Harmonizing Equitable Exceptions: Why Courts Should Recognize An “Actual Innocence” Exception To The Aedpa’S Statute Of Limitations, Morgan Suder

San Diego Law Review

This Comment argues that to neutralize this potential inequality, the Supreme Court should affirm the Ninth Circuit’s recent decision in Lee v. Lampert, finding that a credible claim of actual innocence constitutes an equitable exception to the AEDPA’s one-year statute of limitations period. District courts must be able to call on their equitable powers, including both equitable principles already applied to the AEDPA’s statute of limitations as well as the actual innocence exception, in determining whether a district court may consider the merits of a criminal defendant’s otherwise untimely habeas petition.

Part II discusses the role of federal habeas corpus …

The Judicialization Of International Atrocity Crimes: The Kharkov Trial Of 1943, Michael J. Bazyler, Kellyanne Rose Gold

San Diego International Law Journal

This Article analyzes the Kharkov trial, the first trial of Nazi war criminals undertaken by any Allied Power, as well as the first trial of the Holocaust. It is written on the occasion of the 70th anniversary of the Kharkov trial. Part II, as background, describes the Holocaust as experienced in Kharkov, Ukraine. Part III discusses the trial that took place in Kharkov: the defendants, the prosecution, the setting, and the testimony. Part IV looks at the Kharkov trial as a typical Stalinist “show trial,” where guilt has been predetermined and a trial is used merely as a show to …

Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan

San Diego Law Review

In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense. It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in Part II. …

Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe

San Diego Law Review

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …