Law Commons^™

Making The Best Of Felony Murder, Guyora Binder

Journal Articles

Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this …

Punishing Without Free Will, Luis E. Chiesa

Journal Articles

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy

Journal Articles

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome

Journal Articles

Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind …

Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye

Journal Articles

The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstand­ing arrest warrant. The California Supreme …

Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye

Journal Articles

As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Journal Articles

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer …

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Consent Is Not A Defense To Battery: A Reply To Professor Bergelson, Luis E. Chiesa

Journal Articles

In this essay I argue that, contrary to what most criminal law scholars believe, consent does not operate as a justification that relieves the actor of liability for conduct that admittedly satisfies the offense elements of battery. Rather, I contend that consent is only relevant to battery liability when, in conjunction with other factors, it modifies the definition of the crime in a way that reveals that the defendant’s act does not actually fall within the range of conduct prohibited by the offense. The argument proceeds in three parts.

In Part I, I argue that there are three ways of …

When An Offense Is Not An Offense: Rethinking The Supreme Court's Reasonable Doubt Jurisprudence, Luis E. Chiesa

Journal Articles

No abstract provided.

Headline Kidnappings And The Origins Of The Lindbergh Law, Barry Cushman

Journal Articles

The federal kidnapping statute of 1932 -- which prohibits the transportation of a kidnapped person across state lines -- is commonly known as the Lindbergh Law due to its enactment in the immediate wake of the abduction of Charles and Anne Lindbergh’s child in March of that year. Indeed, but for the commission of that crime the statute probably would not have been enacted. But the Lindbergh affair alone cannot explain the form that the congressional reaction took. For the Lindbergh baby was found murdered fewer than four miles from his home, and there was no evidence that he had …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …