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Full-Text Articles in Law

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah Aug 2022

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …


You Need To Calm Down: Examining The Origin And Eliminating The Future Of The “Gay Panic” Defense, Laura R. Conboy Jun 2022

You Need To Calm Down: Examining The Origin And Eliminating The Future Of The “Gay Panic” Defense, Laura R. Conboy

Buffalo Law Review

No abstract provided.


The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke Nov 2021

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …


When Provocation Is No Excuse: Making Gun Owners Bear The Risks Of Carrying In Public, Eric A. Johnson Oct 2021

When Provocation Is No Excuse: Making Gun Owners Bear The Risks Of Carrying In Public, Eric A. Johnson

Buffalo Law Review

Markeis McGlockton, an unarmed 28-year-old African-American father of three, was shot to death in front of his five-year-old son by “wannabe police officer” Michael Drejka during an argument over parking. Because McGlockton had shoved Drejka before Drejka shot him, Drejka was convicted only of heat-of-passion manslaughter, not murder. This Article argues that the heat-of-passion defense shouldn’t be available in cases like Drejka’s—cases where the defendant was carrying a loaded gun in public at the time of the provocation and used the gun to kill his provoker. The heat-of-passion defense is a concession to the difficulty of complying with the law’s …


Roper’S Unfinished Business: A New Approach To Young Offender Death Penalty Eligibility, Nichole M. Austin Oct 2021

Roper’S Unfinished Business: A New Approach To Young Offender Death Penalty Eligibility, Nichole M. Austin

Buffalo Law Review

No abstract provided.


Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell Aug 2021

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.


"The Angels That Surrounded My Cradle": The History, Evolution, And Application Of The Insanity Defense, Eugene M. Fahey, Laura Groschadl, Brianna Weaver May 2020

"The Angels That Surrounded My Cradle": The History, Evolution, And Application Of The Insanity Defense, Eugene M. Fahey, Laura Groschadl, Brianna Weaver

Buffalo Law Review

No abstract provided.


Derecho Penal Sustantivo, Luis E. Chiesa Jul 2019

Derecho Penal Sustantivo, Luis E. Chiesa

Journal Articles

No abstract provided.


The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa Jan 2019

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa

Journal Articles

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us …


Mens Rea In Comparative Perspective, Luis E. Chiesa Dec 2018

Mens Rea In Comparative Perspective, Luis E. Chiesa

Journal Articles

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. …


The Orwell Court: How The Supreme Court Recast History And Minimized The Role Of The U.S. Sentencing Guidelines To Justify Limiting The Impact Of Johnson V. United States, Brandon E. Beck Dec 2018

The Orwell Court: How The Supreme Court Recast History And Minimized The Role Of The U.S. Sentencing Guidelines To Justify Limiting The Impact Of Johnson V. United States, Brandon E. Beck

Buffalo Law Review

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States,1 struck a portion of the Armed Career Criminal Act2 as void for vagueness. Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions. Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to …


Reforming Restrictive Housing: The 2018 Asca-Liman Nationwide Survey Of Time-In-Cell, Judith Resnik, Anna Vancleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine Mccarthy, Jenny Tumas, Annie Wang Oct 2018

Reforming Restrictive Housing: The 2018 Asca-Liman Nationwide Survey Of Time-In-Cell, Judith Resnik, Anna Vancleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine Mccarthy, Jenny Tumas, Annie Wang

Other Scholarship

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School. These monographs provide a unique, longitudinal, nationwide database. The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of …


Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg Jul 2018

Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the …


The Model Penal Code, Mass Incarceration, And The Racialization Of American Criminal Law, Luis E. Chiesa Jul 2018

The Model Penal Code, Mass Incarceration, And The Racialization Of American Criminal Law, Luis E. Chiesa

Journal Articles

No abstract provided.


Agency And Insanity, Stephen P. Garvey Jan 2018

Agency And Insanity, Stephen P. Garvey

Buffalo Law Review

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.According to the lost-agency theory, a person lacks a sense of agency …


Parallel Enforcement And Agency Interdependence, Anthony O'Rourke Jan 2018

Parallel Enforcement And Agency Interdependence, Anthony O'Rourke

Journal Articles

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships …


Moral Crimes Post-Mellouli: Making A Case For Eliminating State-Based Prostitution Convictions As A Basis For Inadmissibility In Immigration Proceedings, Kerry Q. Battenfeld May 2017

Moral Crimes Post-Mellouli: Making A Case For Eliminating State-Based Prostitution Convictions As A Basis For Inadmissibility In Immigration Proceedings, Kerry Q. Battenfeld

Buffalo Law Review

No abstract provided.


The International Criminal Court: Promise And Politics, Makau Wa Mutua Jan 2017

The International Criminal Court: Promise And Politics, Makau Wa Mutua

Journal Articles

No abstract provided.


Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman Jan 2017

Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman

Journal Articles

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence. This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. …


Solving The Riddle Of Rape By Deception, Luis E. Chiesa Jan 2017

Solving The Riddle Of Rape By Deception, Luis E. Chiesa

Journal Articles

Is sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is …


Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg Jan 2017

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …


Africans And The Icc: Hypocrisy, Impunity, And Perversion, Makau Wa Mutua Oct 2016

Africans And The Icc: Hypocrisy, Impunity, And Perversion, Makau Wa Mutua

Contributions to Books

Published as Chapter 3 in Africa and the ICC: Perceptions of Justice, Kamari M. Clarke, Abel S. Knottnerus, & Eefje de Volder, eds.


Forgiveness, Blame, And Punishment, James Staihar Sep 2016

Forgiveness, Blame, And Punishment, James Staihar

Buffalo Public Interest Law Journal

When someone commits a crime with no exculpatory defenses,he is blameworthy and deserves to be punished. Nevertheless, assuming the criminal were to satisfy some conditions, he could become forgivable. In this Essay I defend a restorative theory of what it means to forgive a criminal and when the forgiveness of a criminal would be warranted. My defense is unique in that I ultimately derive my theory offorgiveness from a novel theory of when criminals deserve to be punished. My restorative theory of forgiveness yields at least two general insights that are generally not appreciated in the prior literature on forgiveness. …


Strenghtening Protections For Survivors Of Domestic Violence: The Case Of Washington, D.C., M. Alexandra Verdi Aug 2016

Strenghtening Protections For Survivors Of Domestic Violence: The Case Of Washington, D.C., M. Alexandra Verdi

Buffalo Law Review

No abstract provided.


The Obligation To Establish Sentences For Torture That Are Commensurate With The Gravity Of The Offense, Daniel O'Donnell Apr 2016

The Obligation To Establish Sentences For Torture That Are Commensurate With The Gravity Of The Offense, Daniel O'Donnell

Buffalo Human Rights Law Review

No abstract provided.


If You've Got The Money, I'Ve Got The Time: The Benefits Of Incentive Contracts With Private Prisons, Michael G. Anderson Sep 2015

If You've Got The Money, I'Ve Got The Time: The Benefits Of Incentive Contracts With Private Prisons, Michael G. Anderson

Buffalo Public Interest Law Journal

Governments increasingly rely on private prison companies to manage the daunting demands associated with their ever- increasing prison populations. The private prison industry provides governments at all levels (federal, state, and local) with an alternative to the costly and time-consuming construction of additional public facilities. Governments, however, have all too often adopted a flawed pricing strategy, paying private prison companies fixed per diem rates to house prisoners. This model both incentivized and tolerated poor conditions with greater emphasis placed on the industry's bottom line than benefits to the state, the prison population, or society as a whole.

This article asserts …


Genocide Denial And The Law: A Critical Appraisal, Paul Behrens Apr 2015

Genocide Denial And The Law: A Critical Appraisal, Paul Behrens

Buffalo Human Rights Law Review

Genocide denial carries particular relevance for international law: it is the negation of international crimes, and it can prepare the ground for new crimes of this kind. But its criminalization raises concerns as well. The danger of a clash with human rights, particularly with the freedom of ex- pression, cannot be dismissed lightly. This article explores reasons for and repercussions of the criminalization of denial. It also investigates alterna- tives, including the use of truth and reconciliation, and evaluates methods that focus on direct confrontation of the deniers.


What Is Criminal Law About?, Guyora Binder, Robert Weisberg Apr 2015

What Is Criminal Law About?, Guyora Binder, Robert Weisberg

Journal Articles

In a recent critique, Jens Ohlin faults contemporary criminal law textbooks for emphasizing philosophy, history and social science at the expense of doctrinal training. In this response, we argue that the political importance of criminal law justifies including reflection about the justice of punishment in the professional education of lawyers. First, we argue that both understanding and evaluating criminal law doctrine requires consideration of political philosophy, legal history, and empirical research. Second, we argue that the indeterminacy of criminal law doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. Finally, …


A Rational Theory Of Mitigation And Aggravation In Sentencing: Why Less Is More When It Comes To Punishing Criminals, Mirko Bagaric Dec 2014

A Rational Theory Of Mitigation And Aggravation In Sentencing: Why Less Is More When It Comes To Punishing Criminals, Mirko Bagaric

Buffalo Law Review

No abstract provided.


Finding Meaning In The Death Of Virtual Identities, Jordan L. Walbesser Oct 2014

Finding Meaning In The Death Of Virtual Identities, Jordan L. Walbesser

Buffalo Intellectual Property Law Journal

Historically speaking, legal fiction assumes that identity and the credentials proving identity are one and the same. It is an important fiction that allows us to access information associated with our identity and restrict others from doing the same. Crimes of identity theft are commonly manifested through the usurpation of one's credentials to falsely verify identity. Legal doctrine such as agency theory makes the assumption that identity and credentials are only transferrable together. Technology, especially the Internet, alters this fiction by allowing the creation of multiple credentials that enable access to multiple identities manifested throughout the world. The one-to-one relationship …