Law Commons^™

Exploiting Trauma: The So-Called Victim's Rights Amendment, Lynne Henderson

Scholarly Works

No abstract provided.

'Suitable Targets'? Parallels And Connections Between 'Hate Crimes' And 'Driving While Black', Lu-In Wang

Articles

While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied racial profiling reveals striking similarities and connections between these two practices. In particular, both hate crimes and racial profiling tend to be condemned only at extremes, in situations where they appear to be irrational and excessive, but overlooked in cases where they seem logical or are expected. The tendency to see only the most extreme cases as problematic, however, fails to recognize that …

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

Articles

There are many angles from which to perceive the contemporary holocaust-era claims. In 1997, Time magazine quoted Elie Wiesel as saying that, [i]f all the money in all the Swiss banks were turned over, it would not bring back the life of one Jewish child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and violence.

Wiesel touches on two perspectives: first, what has been described as litigating the holocaust, with all that that implies about the law's questionable capacity to adjudicate issues …

On Insider Trading, Markets, And "Negative" Property Rights In Information, Zohar Goshen, Gideon Parchomovsky

All Faculty Scholarship

No abstract provided.

Crime, Punishment And Prevention, Paul H. Robinson

All Faculty Scholarship

The criminal justice system has traditionally been seen as in the business of doing justice: punishing offenders for crimes committed. Yet, the past decade has brought a shift from punishing past crimes to preventing future crimes through the incarceration and control of dangerous offenders. Habitual offender statutes, like "three strikes" laws, sentence repeat offenders to life imprisonment. Jurisdictional reforms lower the age at which juveniles may be tried as adults, inc reasing th e available terms of imprisonment beyond those of juvenile court. Gang membership and recruitment are criminalized. "Megan's Law" statutes require community notification of a convicted sex offender. …

Criminal Theory In The Twentieth Century, George P. Fletcher

Faculty Scholarship

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability – normative and descriptive – are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is …

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …

"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same …

"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman

Faculty Scholarship

With each report of violent crime statistics (whether rising or falling) or of the latest firearms outrage, we hear the antiphony of the gun control debate. Advocates of increased federal regulation decry the inadequacies of a regime that permits relatively free access to firearms and argue that the availability of guns is itself a spur to more deadly violence. Advocates of minimal regulation, for their part, condemn measures that, they say, will primarily penalize law-abiding citizens, and instead call for more vigorous enforcement of existing laws, targeting "criminals," not their weapons. When the antiphony intrudes on funerals, the effect can …

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …

Sentencing Eddie, Gerard E. Lynch

Faculty Scholarship

The mandatory minimum sentences attached to federal narcotics violations have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. Newspaper columnists,professional commentators, judges, and academics, have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. Even Chief Justice Rehnquist, a strong voice for …

The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

We examine support for the death penalty among a unique group of respondents: one hundred and eighty-seven citizens who actually served as jurors on capital trials in South Carolina. Capital jurors support the death penalty as much as, if not more than, members of the general public. Yet capital jurors, like poll respondents, harbor doubts about the penalty's fairness. Moreover, jurors--black jurors and Southern Baptists in particular--are ready to abandon their support for the death penalty when the alternative to death is life imprisonment without the possibility of parole, especially when combined with a requirement of restitution. Support for the …

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The …

Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman

Faculty Scholarship

In late March, a reporter called with news of a pirated copy of Professor Joseph Hoffinann's soon-to-be-published "attack" on our study, A Broken System: Error Rates in Capital Cases, 1973-1995. Did we care to comment? Obtaining our own copy revealed that Professor Hoffmann's fusillade missed its mark (he misstates what we did) and boomeranged (his mischaracterizations of our analysis accurately describe his own). We do care to comment, and Hoffmann and the Indiana Law Journal have graciously let us do so.

Hoffmann's main claim is that we "extrapolated" the 68% rate of reversible error we reported for capital verdicts …

Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones

Vanderbilt Law School Faculty Publications

This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).

Judicial Fact-Finding And Sentence Enhancements In A World Of Guilty Pleas, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Criminal Justice And Black Families: The Collateral Damage Of Over-Enforcement, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

"A Common Fate Of Discrimination": Race-Gender Analogies In Legal And Historical Perspective, Serena Mayeri

All Faculty Scholarship

No abstract provided.

Public Executions In America Should Death Row Inmates Be Able To Choose Between Private And Public Death, Nicholas Compton

Richmond Public Interest Law Review

On June 13, 1997, Timothy McVeigh was sentenced to death for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19,1995. The bombing resulted in the deaths of 168 people and the wounding of over 500 more. McVeigh successfully petitioned U.S. District Court Judge Richard Matsch to put an end to his appeals and expedite his execution. At midnight on February 16, 2001 McVeigh let pass his deadline to petition President George W. Bush for clemency. He is scheduled to die by lethal injection on May 16, 2001 at the federal penitentiary in Terre Haute, …

Toward A Comparative Economics Of Plea Bargaining (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A comparison of adversarial and inquisitorial approaches to criminal adjudication and its implications for plea bargaining.

The Evolving Concept Of Universal Jurisdiction (Symposium), Bartram Brown

Bartram Brown

No abstract provided.

The Introduction Of Jury Trials And Adversarial Elements Into The Former Soviet Union And Other Inquisitorial Countries, James W. Diehm

James W. Diehm

Wilde On Trial: Psychic Injury, Exhibitionism And The Law, Kirby Farrell Prof

kirby farrell

A reassessment of Oscar Wilde's conviction for sexual offenses. Wilde's trial responded to polarization in fantasies of respectability in late Victorian culture, with the fear of social death underlying anxieties about homosexuality.

6. Reducing Maltreated Children’S Reluctance To Answer Hypothetical Oath-Taking Competency Questions., Thomas D. Lyon, Karen J. Saywitz, Debra Kaplan, Joyce S. Dorado

Thomas D. Lyon