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Full-Text Articles in Law

Custom, General Principles And The Great Architect Cassese, Mary Fan Dec 2012

Custom, General Principles And The Great Architect Cassese, Mary Fan

Articles

Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must study the …


Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert Jul 2012

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

Articles

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …


From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson Jun 2012

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

Articles

Burglary began evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today, burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to …


Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan Jan 2012

Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan

Articles

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ("crimmigration'), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of "cooperative federalism" that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting …


Confronting The Invisible Witness: The Use Of Narrative To Neutralize Capital Jurors’ Implicit Racial Biases, Pamela A. Wilkins Jan 2012

Confronting The Invisible Witness: The Use Of Narrative To Neutralize Capital Jurors’ Implicit Racial Biases, Pamela A. Wilkins

Articles

How can capital defense lawyers craft narratives that neutralize jurors’ unconscious racial and ethnic biases? A well-developed body of research in cognitive psychology indicates that despite even the best of intentions and the absence of conscious prejudice, most Americans harbor unconscious biases against African Americans. These biases influence what we actually perceive, how we interpret what we perceive, and how we act. For reasons related to the content and structure of capital sentencing trials, these unconscious biases are particularly likely to influence capital jurors. In effect, unconscious racial bias acts as an invisible witness against the African American defendant, buttressing …


Introduction: Jessica Lenahan (Gonzales) V. United States: Implementation, Litigation, And Mobilization Strategies, Caroline Bettinger-López Jan 2012

Introduction: Jessica Lenahan (Gonzales) V. United States: Implementation, Litigation, And Mobilization Strategies, Caroline Bettinger-López

Articles

No abstract provided.


Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam Jan 2012

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

Articles

No abstract provided.


The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe Jan 2012

The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe

Articles

The United States Supreme Court over the last decade has selectively whittled away at the scope and availability of the death penalty by exempting certain groups from execution under the Eighth Amendment. In 2002 the court ruled that executing mentally retarded criminals violates the Constitution's ban on cruel and unusual punishment. In 2005 the court ruled that the Constitution forbids the execution of individuals who were under the age of 18 when they committed their crimes. Currently there is an active debate on whether to extend the categorical exemptions created by the Court to the mentally ill. At the forefront …


Criminal Child Neglect And The Free Range Kid: Is Overprotective Parenting The New Standard Of Care?, David Pimentel Jan 2012

Criminal Child Neglect And The Free Range Kid: Is Overprotective Parenting The New Standard Of Care?, David Pimentel

Articles

No abstract provided.


Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran Jan 2012

Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran

Articles

The following essay is a summary of remarks I delivered at the symposium on corporate responsibility and the Alien Tort Statute held at Georgetown Law School after the first Kiobel v. Royal Dutch Petroleum Co. Supreme Court oral argument. My remarks addressed the importance of considering foreign national law when judging the meaning of universal civil jurisdiction, and, implicitly, the inextricability of domestic from international law matters.


Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott Jan 2012

Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott

Articles

State legislatures enacted sex offender registration and notification (SORN) laws with the explicit and exclusive aim of reducing sex offender recidivism. The general idea that we ought to “regulate” released offenders — of any type — to reduce the likelihood of their returning to crime is an attractive one, at least in theory. Criminal recidivism generates significant social harm. Nevertheless, despite their now-widespread use, SORN laws became the norm without any systematic study of their consequences. Admittedly, the logic underlying these laws seems at first difficult to gainsay: if a known sex offender poses even a small risk to a …


Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier Jan 2012

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …


The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr. Jan 2012

The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …


David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross Jan 2012

David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross

Articles

The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death than white …


Symposium: Examining Shaken Baby Syndrome Convictions In Light Of New Medical And Scientific Research, David A. Moran Jan 2012

Symposium: Examining Shaken Baby Syndrome Convictions In Light Of New Medical And Scientific Research, David A. Moran

Articles

I've been asked to react to Professor Findley's talk, and I just wanted to try to put this in a concrete format that we can understand. In the summer of 2001, when my oldest daughter was about six months old, I put her in a backpack (the kind that you strap to your back) to go for a hike. In trying to get her out of that backpack after the walk, I dropped her, and she landed on her head, and she very briefly lost consciousness. So I rushed her to the University of Michigan Medical Center in Ann Arbor, …


Proving Corporate Criminal Liability For Negligence In Vessel Management And Operations: An Allision-Oil Spill Case Study, Craig H. Allen Jan 2012

Proving Corporate Criminal Liability For Negligence In Vessel Management And Operations: An Allision-Oil Spill Case Study, Craig H. Allen

Articles

Maritime policy analysts often invoke the "vessel safety net" metaphor to explain the independent, but overlapping, risk management roles and responsibilities of the vessel master and crew, owner and charterer, operating company, classification society, flag state and port states. Oil spills from the 2002 M/T Prestige break up off the coast of Galicia, Spain, the 2007 M/V Cosco Busan bridge allision in San Francisco Bay and the 2010 Deepwater Horizon debacle in the Gulf of Mexico, among others, demonstrate that any or all of the components of that safety net may come under scrutiny following a marine casualty, possibly leading …