Law Commons^™

Essential Elements, Nancy J. King, Susan R. Klein

Vanderbilt Law Review

For well over a century the United States Supreme Court has debated who has final authority to define what is a "crime" for purposes of applying the procedural protections guaranteed by the Constitution in criminal cases. After numerous shifts back and forth from judicial to legislative supremacy,' the Court has settled upon a multi-factor analysis for policing the criminal-civil divide, an analysis that permits courts to override legislative intent to define an action as civil in the rare case where the action waddles and quacks like a crime. This tug-of-war over the finality of legislative labels in defining crime and …

A Predictive Framework For The Effectiveness Of International Criminal Tribunals, James B. Griffin

Vanderbilt Journal of Transnational Law

This Note examines international criminal tribunals and analyzes the factors that can govern the level of their effectiveness. The historical background in this area is essential, for one of the main points of the Note is that international criminal tribunals cannot be detached from the political circumstances that create them and enforce their verdicts if those verdicts are to be enforceable at all.

The Note begins with an analysis of the International Military Tribunal at Nuremberg, and compares it to its contemporary counterpart, the International Military Tribunal at Tokyo. The Note then makes a similar analysis of the recent International …

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …

Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones

Vanderbilt Law School Faculty Publications

This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).

Specific Crime Vs. Criminal Ways: Criminal Conduct And Responsibility In Rule 3e1.1, Matthew Richardson

Vanderbilt Law Review

The United States Sentencing Commission ("Sentencing Commission") drafted Rule 3E1.1 with an inherent ambiguity, one that concerns both the Rule's purpose and design. Rule 3E1.1 allows for a reduction in sentence if a criminal "accepts responsibility" for his offense.' As result of the Rule's ambiguous language, prior tensions in interpretation of its meaning have spilled over into the current debate over sentence reductions.

The inherent ambiguity results from the Rule's genesis. The Sentencing Commission enacted the Rule with the purpose of increasing predictability in sentencing by reducing judicial discretion. Before the enactment of the Rule, mitigating and aggravating circumstances allowed …

"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same …

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …