Law Commons^™

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, …

Anna Moscowitz Kross And The Home Term Part: A Second Look At The Nation's First Criminal Domestic Violence Court, Mae C. Quinn

Journal Articles

No abstract provided.

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Journal Articles

This article argues that in creating the public safety exception to the Miranda requirements, the Supreme Court implicitly analogized to the criminal law doctrines of self-defense and defense of others. Thus, examining the justifications of self-defense and defense of others can be useful in determining the contours of the public safety exception and the related "rescue doctrine" exception. In particular, the battered woman syndrome -- which is recognized in a majority of the states and has been successfully invoked by defendants in some self-defense cases -- could provide a conceptual analogue for arguments about whether law enforcement officers were faced …

Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill C. Engle

Journal Articles

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.

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

Journal Articles

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. …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Journal Articles

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Journal Articles

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

Probability And Punishment: How To Improve Sentencing By Taking Account Of Probability, Jacob Schuman

Journal Articles

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate …

Book Review, Angela Mae Kupenda

Journal Articles

Racial Reckoning: Prosecuting America’s Civil Rights Murders is an exceptional work by Renee C. Romano. This review will first discuss a concern I had prior to reading her book. Discussion of this alleviated concern will be followed by brief consideration of Romano’s well selected titled, which will be followed by a discussion of what I see as major contributions of the book.