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Criminal Law

Duke Law

Punishment

Publication Year

Articles 1 - 5 of 5

Full-Text Articles in Law

Book Review, Samuel W. Buell Jan 2012

Book Review, Samuel W. Buell

Faculty Scholarship

No abstract provided.


Cruel And Unequal Punishment, Nita A. Farahany Jan 2009

Cruel And Unequal Punishment, Nita A. Farahany

Faculty Scholarship

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …


The Upside Of Overbreadth, Samuel W. Buell Jan 2008

The Upside Of Overbreadth, Samuel W. Buell

Faculty Scholarship

Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors …


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.


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, …