Law Commons^™

The Emperor Gideon Has No Clothes: The Empty Promise Of The Constitutional Right Of Effective Assistance Of Counsel, Richard Klein

Richard Daniel Klein

No abstract provided.

"Caylee's Law" May Come To Tennessee, Charles E. Maclean

Charles E. MacLean

No abstract provided.

Summary Of Saletta V. State, 127 Nev. Adv. Op. No. 34, Erin Elliot

Nevada Supreme Court Summaries

Appeal from a judgment of conviction by a criminal defendant convicted of indecent or obscene exposure.

Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman

Pace Law Review

Probably the most damaging external impediment to a lawyer’s ability to render effective assistance to a client may come from the interference by the trial judge in counsel’s advocacy. A judge supervises the conduct of a trial but he is more than a mere umpire or moderator. A trial judge, by his rulings, questions, and comments, has an enormous capacity to affect the merits of a party’s case and thereby influence the verdict of the jury. To be sure, the basic requirement of a trial judge, both legally and ethically, is to be impartial in demeanor as well as in …

The Boundaries Of Privacy Harm, M. Ryan Calo

Indiana Law Journal

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer

Indiana Law Journal

Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first degree, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.

Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Indiana Law Journal

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for selfdefense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals―not just communities―have the right to protect themselves from public violence. Individuals―not just militias―have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, …

The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt

Indiana Law Journal

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

International Drug Trafficking: A Global Problem With A Domestic Solution, Matthew S. Jenner

Indiana Journal of Global Legal Studies

Forty years ago, the world declared war on drugs. Today, after decades of failing to adequately control drug consumption, an even graver problem has emerged: violent drug traffickers have taken the industry hostage and will stop at nothing to preserve their power. Governments have instituted dozens of programs to dismantle the illicit drug industry, but they have seen only marginal success. One strategy, however, has yet to be fully tested: universal legalization. Universal legalization of all drugs would attack the illicit drug market head-on, destroying the profit incentive for drug traffickers and placing control of the industry in the hands …

From Oglethorpe To The Overthrow Of The Confederacy: Habeas Corpus In Georgia, 1733-1865, Donald E. Wilkes Jr.

Scholarly Works

This Article will provide, for the first time, a comprehensive account of the writ of habeas corpus in Georgia not primarily focused on use of the writ as a postconviction remedy. The Article covers the 132-year period stretching from 1733, when the Georgia colony was established, to 1865, when the Confederate States of America was finally defeated and the American Civil War came to a close.

State V. Jackson And The Explosion Of Liability For Felony Murder, Brian E. Brupbacher

Mercer Law Review

In The Discourses, Niccold Machiavelli wrote, "The dangers involved in conspiracies[] ... are considerable, and go on all the time, for in a conspiracy dangers crop up alike in forming the plot, in carrying it out, and as a result of its having been carried out."' Although by its context this remark refers to conspiracies to commit regicide and the problems these conspiracies pose to the conspirators, this remark well describes practical and legal problems that can result from conspiracies to commit felonies. In Georgia this is particularly true following the June 28, 2010 ruling in State v. Jackson …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Stacy Caplow, Lisa Griffin

Faculty Scholarship

No abstract provided.

The Final Twist In Common Intention? Daniel Vijay S/O Katherasan V. Public Prosecutor, Siyuan Chen

Research Collection Yong Pung How School Of Law

It was only in 2008 that the Court of Appeal made a seminal restatement of the law on common intention, particularly with respect to liability in so-called ‘twin crime’ situations. The question posed then was posed again recently in Daniel Vijay: what exactly is the required mens rea for the secondary offender in such situations? In 2008, the Court of Appeal said that the secondary offender had to subjectively know that one in his party might likely commit the collateral offence in furtherance of the common intention of carrying out the primary offence. Now, in Daniel Vijay, the Court …

The Dynamics Of Drug Trafficking/ Smuggling By Female Offenders In The Trinidad And Tobago Prison Service: An Exploratory Mixed-Methods Approach, Le 'Jeane' Iman Ellis

Sociology & Criminal Justice Theses & Dissertations

Female offenders incarcerated for the crime of drug trafficking/smuggling have received little research attention. This thesis is an exploratory study designed to help fill that gap. As such, the study is primarily focused on women involved in the illicit drug economy via their participation in drug trafficking/ smuggling activities and secondarily focused on the general population of females incarcerated/remanded for various other crimes. Within the relevant body of research the term "trafficking" is loosely utilized (Fleetwood 2009). Thus to provide clarity, in this research project the terms "trafficking" and "smuggling" are used interchangeably and specifically reference the act of international …

The Strong Arm Of The Law Is Weak: How The Tvpa Is Failing Victims Of The Sex Trafficking Trade, Cheryl George Professor

Cheryl Page

No abstract provided.

15. Assessing The Competency Of Child Witnesses: Best Practice Informed By Psychology And Law., Thomas D. Lyon

Thomas D. Lyon

Criminal And Civil Law In The Torah: The Mosaic Law In Christian Perspective, David A. Skeel Jr., Tremper Longman

All Faculty Scholarship

When Jesus spoke of fulfilling the law and the prophets, he was referring to the Mosaic law, nearly all of which is in the four books we consider in this Article: Exodus, Leviticus, Numbers and Deuteronomy. In an effort to discern the Mosaic law’s guidance for contemporary secular law, we first place it in covenantal perspective and identify three of its key concerns: God’s nature, as revealed in Scripture; the nature of Israel; and the role of the land. After summarizing the regulation in the four books under consideration and noting a few of its characteristics, we conclude by discussing …

Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii

Legislation and Policy Brief

In June of 2008, the Supreme Court handed down a landmark decision in District of Columbia v. Heller, declaring that a District of Columbia law prohibiting the possession of handguns in a private home for personal protection violated the Second Amendment of the Constitution. Justice Scalia, writing for a 5-4 majority, recognized that the protections provided by the Second Amendment apply to individuals—not just “militias”—and emphatically declared that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” After four years of …

Brief For Evidence And Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Alexander A. Reinert

Amicus Briefs

Amici are scholars who teach and write about criminal law, criminal procedure, and evidence. We file this brief to address the relationship between rules of admissibility for psychiatric testimony and Eighth Amendment standards for procedure in capital trials. The decision by the Texas Court of Criminal Appeals paid little attention to this relationship, but in so doing it ignored much of this Court’s important capital punishment jurisprudence. Amici write to emphasize that the Eighth Amendment’s emphasis on reliability and accuracy in capital trials has ramifications for the admissibility of expert testimony.

Our scholarly interest in this issue arises from teaching …

The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Social Contract Theory Of John Locke (1932-1704) In The Contemporary World, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The 17th century period was marked by an attempt to erect effective safeguard against violations of natural law by governments. Law in this period was conceptualized as an instrument for the prevention of autocracy and despotism. Absolutism in Europe that was associated with governmental encroachments necessitated a strong shield of individual liberty. In this period legal theory placed the main emphasis on liberty, thus the law was to render governments capable of functioning as a guarantor of individual rights. This paper aims at examining the social contract theory of the 17th-century English philosopher, John Locke, its parameters, limitations and its …

The Sex Offender Registration And Notification Act: The Need To Break The Constitutional Mold, Bailey Bifoss

Golden Gate University Law Review

The Sex Offender Registration and Notification Act (SORNA) is an example of legislation that utilizes the constitutional mold, as it contains a jurisdictional hook that expressly limits its application to activities that affect interstate commerce. SORNA’s jurisdictional hook states that a sex offender is guilty of violating its provisions if, after that offender travels in interstate commerce, he or she fails to register or update a registration as required. This hook provides federal jurisdiction over sex offenders even though SORNA’s purpose is to regulate criminal conduct and thus traditionally within the states’ power to regulate. SORNA, therefore, exemplifies the way …

Universal Jurisdiction Not So Universal: A Time To Delegate To The International Criminal Court, Dalila V. Hoover

Cornell Law School Inter-University Graduate Student Conference Papers

The exercise of universal jurisdiction in cases involving crimes under international law remains highly debated and underlines a certain number of legal and political issues in its implementation. Because the principle of universal jurisdiction relies on national authorities to enforce international prohibitions, pivotal decisions are expected to reflect, to a greater or lesser extent, domestic decision-makers’ positions as to the interests of justice, the national interest and other criteria. In many States, the legal system lacks the means to investigate or prosecute on the basis of universal jurisdiction. Indeed, many legal systems do not define the term “crimes” that can …

Summary Of Rogers V. State, 127 Nev. Adv. Op. No. 25, Sean W. Mcdonald

Nevada Supreme Court Summaries

Appeal from judgment of conviction, pursuant to jury verdict, of driving under the influence of a controlled substance on grounds certain evidence was inadmissible.

Bargaining With Double Jeopardy, Saul Levmore, Ariel Porat

Ariel Porat

Virtually every burden of proof is influenced by a rule regarding relitigation. In criminal law, the prosecutor is prevented from repeatedly drawing from the urn, as it were, by the double jeopardy rule, which reinforces the beyond-a-reasonable-doubt standard. We suggest that if law were to permit the defendant to waive the double jeopardy protection, private and social benefits might follow. The benefits derive from the likelihood that the prosecutor – like most people who can take a test but once – will overinvest in preparation. Somewhat similarly, though far afield, deficit spending by a legislature might be linked to the …

From Here To There: U.S. Export Reform, William Alan Nelson Ii, Correen Wood

William Alan Nelson II

No abstract provided.

From Protection To Punishment: Post-Conviction Barriers To Justice For Domestic Violence Survivor-Defendants In New York State, Tamar Kraft-Stolar, Elizabeth Brundige, Sital Kalantry, Jocelyn Getgen Kestenbaum, Avon Global Center For Women And Justice At Cornell Law School, Women In Prison Project (Correctional Association Of New York)

Avon Global Center for Women and Justice and Dorothea S. Clarke Program in Feminist Jurisprudence

No abstract provided.

When The Bezzle Bursts: Restitutionary Distribution Of Assets After Ponzi Schemes Enter Bankruptcy, Mallory A. Sullivan

Washington and Lee Law Review

No abstract provided.

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

All Faculty Scholarship

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Infusing Due Process And The Principle Of Legality Into Contempt Proceedings Before The International Criminal Tribunal For The Former Yugoslavia Ad The International Criminal Tribunal For Rwanda, Gwendolyn Stamper

Michigan Law Review

Contempt proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda suffer from two procedural defects: the hearings run afoul of the principle of legality and fail to afford calibrated procedural protection for accused contemnors. First, this Note contends that these two tribunals properly rely on their inherent powers to codify procedural rules for contempt proceedings. However the tribunals' inherent power to prosecute contempt does not allow the courts to punish contemptuous conduct that has not been explicitly proscribed. Such a prosecution contravenes the principle of legality, which provides that criminal responsibility may …