Law Commons^™

Intencion Especifica, Intoxicacion Voluntaria Y Otros Demonios, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Trager Symposium: Our New Federalism? National Authority And Local Autonomy In The War On Terror: Introduction, Susan Herman

Faculty Scholarship

No abstract provided.

'A Flame Of Fire': The Fourth Amendment In Perilous Times, John Burkoff

Articles

The important questions we need to ask and to answer in the perilous times in which we live is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our …

"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt

Faculty Scholarship

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal …

The Political Delinquent: Crime, Deviance, And Resistance In Black America, Trevor George Gardner

Scholarship@WashULaw

This Article is largely an argument that the pervasive sense of cultural resistance in the African American community must be considered by criminal theorists as, at least, a partial explanation of “criminality” within the African American community. Woven into the fabric of African American culture is a vital oppositional element. This element, spoken of in many circles as “oppositional culture” constitutes a bold and calculated rejection of destructive mainstream values that have perpetuated social inequalities and power imbalances. African American resistance culture is captured by novelist John Edgar Wideman in his account of his brother ’s criminal lifestyle and the …

Crime, Law, And The Community: Dynamics Of Incarceration In New York City, Jeffrey A. Fagan

Faculty Scholarship

Random Family (LeBlanc 2003) tells the story of a tangled family and social network of young people in New York City in which prison threads through their lives since childhood. Early on, we meet a young man named Cesar, who sold small amounts of crack and heroin in the streets near his home in the Bronx. During one of his many spells in jail, Cesar sees his father pushing a cafeteria cart in the Rikers Island Correctional Facility, New York City’s jail. Cesar had not seen his father in many years, but he was not very surprised to see him …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

[N]Ot A Story To Pass On: Constructing Mothers Who Kill, Susan Ayres

Faculty Scholarship

Toni Morrison has said in her Nobel acceptance speech, “We die. That may be the meaning of life. But we do language. That may be the measure of our lives.” How we “do language” in judicial decisions about infanticide can perhaps be compared to and informed by fiction such as Toni Morrison’s Beloved.

Beloved provides a fictional account of the life of a historical woman, a slave who escaped to freedom and then attempted to kill all four of her children, successfully killing one when her master came to claim her under the Fugitive Slave Act. In addition to …

When Two Become One: Views On Fletcher's "Two Patterns Of Criminality", Deborah W. Denno

Faculty Scholarship

George Fletcher's Rethinking Criminal Law (“Rethinking”) is the ultimate cut-to-the-chase treatise. The book does not belabor the frailties of existing criminal law, but rather predicts an overhaul of much of its doctrine. This essay marks a tribute to Rethinking's influence by examining two of the book's well known “patterns of criminality”: (1) “manifest criminality,” which proposes that crimes are acts that any “objective” observer would clearly recognize as illegal without knowing anything about the mental state of the person committing those acts, and, in stark contrast, (2) “subjective criminality,” which suggests that crimes are consciously intended and experienced only by …

Torture, Necessity, And The Union Of Law & Philosophy, Kimberly Kessler Ferzan

All Faculty Scholarship

This brief essay critiques the torture memoranda's use of the necessity defense from the perspectives of criminal law doctrine, criminal law theory, and moral philosophy.

The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

"The Shame Of It All": Stigma And The Political Disenfranchisement Of Formerly Convicted And Incarcerated Persons, Regina Austin

All Faculty Scholarship

No abstract provided.

Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus

Faculty Scholarship

This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure "treatment facilities" for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of "civil commitment" has forced psychiatry to legitimate and arbitrate …

Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is …

The Transnational And Sub-National In Global Crimes, Lan Cao

Faculty Publications

No abstract provided.

The United States Supreme Court Rulings On Detention Of "Enemy Combatants" - Partial Vindication Of The Rule Of Law, Douglass Cassel

Journal Articles

In three rulings on prolonged military detention of so-called "unlawful enemy combatants" in the "war" against terrorism, the United States Supreme Court in June 2004 shielded the rule of law from some of the more extreme excesses of the Bush Administration. However, the Court also yielded some ground and left open a number of troublesome questions.

The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler

All Faculty Scholarship

Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty …

Reason, Results, And Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Universal Criminal Jurisdiction, Douglass Cassel

Journal Articles

Universal criminal jurisdiction is an important tool in the worldwide struggle to end impunity for serious international crimes.

Universal criminal jurisdiction is the principle of international law that permits any nation to prosecute certain serious international crimes, regardless of where they are committed, by whom or against whom, or any other unique tie to the prosecuting nation. The Recommendation applies whether or not an accused is in custody and does not address the separate topics of universal jurisdiction in civil cases or the immunities of senior government officials before foreign national courts.

Universal criminal jurisdiction developed over time as a …

Unfunding Terror - Perspectives On Unfunding Terror (Panel One), Jimmy Gurule

Journal Articles

According to the FBI, the September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon that claimed the lives of 2,973 innocent civilians required as much as $500,000 to stage. At the time, al Qaeda, the jihadi terrorist organization responsible for the mass killings, was operating on an annual budget between $30 and $50 million. However, despite the obvious fact that terrorists need money to support their terrorist operations and organizational infrastructure, prior to 9/11, preventing the financing of terrorism was not a priority for the United States or international community. Moreover, a comprehensive legal framework to …

Executive And Judicial Overreaction In The Guantanamo Cases, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court in Rasul v. Bush and Al-Odah v. United States held that detainees at Guantanamo Bay may challenge their detentions via writs of habeas corpus. Justice Stevens' majority opinion held that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." This holding is potentially unbounded, perhaps enabling someone detained at Kandahar or even Diego Garcia to challenge his detention via the great writ. It appears to be a striking break from the 1950 Johnson v. Eisentrager decision, which strongly intimated that …

A Different Kind Of Labor Law: Vagrancy Law And The Regulation Of Harvest Labor, 1913-1924, Ahmed A. White

Publications

No abstract provided.

Defending Imminence: From Battered Women To Iraq, Kimberly Kessler Ferzan

All Faculty Scholarship

The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor's attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the …

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

All Faculty Scholarship

No abstract provided.

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …

How Different Is Death? Jury Sentencing In Capital And Non-Capital Cases Compared, Nancy J. King

Vanderbilt Law School Faculty Publications

Drawing upon a recent study of felony jury sentencing in Kentucky, Virginia, and Arkansas, this essay highlights some of the similarities and differences between jury sentencing in capital cases and jury sentencing in non-capital cases. Unlike jury sentencing in capital cases, jury sentencing in non-capital cases includes functional differentials in judge and jury options for sentencing, and fewer controls on arbitrary decision-making. Jury sentencing in both contexts shares the potential for reluctance on the part of elected judges to reduce jury sentences, information gaps on the part of jurors in setting sentences, and, above all, service as a tool in …

Folktales Of International Justice, David Luban

Georgetown Law Faculty Publications and Other Works

When Laura Dickinson asked me to participate on this panel, she very nicely said that she hoped I could bring a different perspective to the discussion. I thought I knew what she meant. The other panelists share a profound knowledge of how international criminal-law institutions work. My "different perspective" would therefore be the perspective of abject ignorance.

Taking comfort from the Socratic dictum that there is wisdom in knowing what you do not know, I accepted the invitation because it gives me the opportunity to pose questions rather than proposing answers. I will raise my questions by examining some stories …

The Burdens Of Representing The Accused In An Age Of Harsh Punishment, Abbe Smith

Georgetown Law Faculty Publications and Other Works

The crimes are not any worse than they used to be. They run, as crimes do, from the banal to the barbarous. But punishment seems to have taken on a life of its own.

There are people serving more than twenty years for nonviolent drug offenses. There are people serving more than thirty years for car theft, burglary, and unarmed robbery--crimes for which a harsh sentence used to be ten years. One Oklahoma woman is serving a thirty-five year sentence for "till-tapping"--stealing money out of cash registers--when she was in the throes of a heroin addiction. It is impossible to …

Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).

Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate …