Law Commons^™

Davis V. United States: The “Good-Faith” Effort To End The Exclusionary Rule, Michael Dunham

Michael Dunham

No abstract provided.

Cell Phone Searches In A Digital World: Blurred Lines, New Realities And Fourth Amendment Pluralism, Steven I. Friedland

Steven I. Friedland

State and federal courts are split over whether cell phone searches incident to a lawful arrest are permissible under the Fourth Amendment. The Supreme Court has the opportunity to create uniformity by accepting a certiorari petition in a cell phone search incident to arrest case, either United States v. Wurie or Riley v. California. The Court should do so to create an analysis that incorporates sensory enhancing technology, not avoids it, as it has done to date.

The split in case law evidences a central contradiction. Fourth Amendment rules need to be predictable and based on clear guidelines for effective …

Legalized Lynch Mobs In The 21st Century: Racial Improprieties In The Death Penalty, Betsy A. Daniller

Betsy A Daniller

No abstract provided.

The Forgotten Nuremberg Hate Speech Case: Otto Dietrich And The Future Of Persecution Law, Gregory S. Gordon

Gregory S. Gordon

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested parties.

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

Learning From Our Mistakes: Practical Solutions For Reducing The Rate Of Incarceration In Louisiana, Kara Larson

Kara Larson

This article examines the causes of the high rate of incarceration in Louisiana and focuses on the societal and economic effects of such a rate. It then analyzes recent steps taken by the Louisiana legislature to address the rate of incarceration. Finally, the article concludes by offering suggestions to reduce the rate further while combating recidivism.

Lights, Camera, Arrest: The Stage Is Set For A Federal Resolution Of A Citizen's Right To Record The Police In Public, Taylor R. Robertson

Taylor R Robertson

Grab your cellphone, press the record button, and amaze your friends!

No advertisement like this exists in real life, of course, because the action is already universally automatic—it needs no encouragement or instruction. But aim the camera at the police and you could be arrested and face up to fifteen years in prison under some eavesdropping or wiretapping laws simply for recording the police in public speaking at volumes audible to any unassisted ear. While wiretapping laws were originally intended to protect citizens from the snooping detective, some states have effectively turned these laws into government protection from the watchful …

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

"First, Do No Harm:" Interpreting The Crime Of Aggression To Exclude Humanitarian Intervention, Joshua L. Root

Joshua L. Root

The yet to be implemented Article 8 bis of the Rome Statute criminalizes, as the crime of aggression, acts of aggression which by their “character, gravity and scale” constitute a “manifest violation” of the Charter of the United Nations. This article argues that Article 8 bis must be construed so as to exclude from the International Criminal Court’s jurisdiction uses of force which are facial violations of the UN Charter but which nonetheless comport with the principles and purposes of the Charter, such as bona fide humanitarian intervention unauthorized by the Security Council. This article applies the Vienna Convention on …

Victim Impact Evidence: An Analysis On The Effect Of Victim Impact Evidence On The Sentencing Stage In Death-Penalty Cases And Potential Reforms, Kyle W. Kahan

Kyle W Kahan

No abstract provided.

U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne

Allison Rogne

It is a well-established principle, both domestically and internationally, that rape is torture when suffered as part of confinement. It is also well documented, both domestically and internationally, that rape is rampant in U.S. prisons. And it is well established, both domestically and internationally, that those who torture should not do so with impunity, that that impunity is an affront to civilization and the human rights principles to which we all strive. And yet, in U.S. prisons, shocking numbers of women are systematically raped and sexually abused by those that would rehabilitate them. Female prisoners are victims of vaginal and …

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Probable Cause On A Leash, Taylor D. Phipps

Taylor D Phipps

This article develops in four parts. Part II of this article explores the historical evolution of Supreme Court caselaw and the Court’s recent decision in Florida v. Harris.[1] This article attempts to enlighten the Court’s standard in Harris by looking to prior caselaw and discusses why courts should interpret the holding in a way that allows defendants to challenge the legitimacy and accuracy of training and certification programs. If applied incorrectly, Harris will violate the Fourth Amendment and allow searches to occur on less than probable cause. Part III reviews the fallibility of drug detection dogs and the diversity …

Women At The Forefront: An Examination Of The Disproportionate Exposure Of Mothers To Liability Under Parental Responsibility Laws, Portia Allen-Kyle

Portia Allen-Kyle

This Note discusses the social and legislative affinity for parental responsibility laws in response to juvenile delinquency and victimization and examines the discriminatory impact of such laws on mothers. This Note argues two-fold that: 1) the mere existence of parental responsibility statutes perpetuates “mother blaming” and disproportionately exposes mothers to liability and are thus discriminatory in their effect, and 2) the use of vicarious, strict liability for parents is ineffective and inappropriate in affecting juvenile behavior. Section I provides a discussion about the history of parental responsibility laws and argue the symbolic purpose of many parental responsibility laws. Section II …

Miranda, Secret Questioning, And The Right To Counsel, Geoffrey S. Corn

Geoffrey S. Corn

Surreptitious police questioning, either through an undercover officer or a prison inmate acting as a government agent, is often an effective tactic to exploit a suspect’s erroneous belief that it is safe to make incriminating statements. The Supreme Court has held that use of this tactic does not implicate the Miranda rights warning and waiver requirement because the suspect’s ignorance that the false friend is in fact a government agent eliminates an essential element of the custodial interrogation trigger for these rights. However, in Edwards and Minnick, the Supreme Court recognized that once a suspect invokes the Miranda right …

The Surveillance Society And The Third-Party Privacy Problem, Shaun Spencer

Shaun Spencer

This article examines a question that has become increasingly important in the emerging surveillance society: should the law treat information as private even though others know about it? This is the third-party privacy problem. Part I explores two competing conceptions of privacy: the binary and contextual conceptions. Part II describes two features of the emerging surveillance society that should change the way we address the third-party privacy problem. One feature, “surveillance on demand,” results from exponential increases in data collection and aggregation. The other feature, “uploaded lives,” reflects a revolution in the type and amount of information that we share …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole, Sonia A. Mardarewich

Sonia A Mardarewich

CERTAINTY IN A WORLD OF UNCERTAINTY: PROPOSING

STATUTORY GUIDANCE IN SENTENCING JUVENILES TO LIFE WITHOUT PAROLE

Sonia Mardarewich[1]

Florida Coastal School of Law

March 2013

Abstract: Before the Supreme Court’s decision in Miller v. Alabama, the states were divided between mandatory and discretionary life without the possibility of parole sentencing approaches. The Supreme Court decision of Miller eliminated mandatory life without parole for juvenile defendants under the age of eighteen at the time of the crime. The Supreme Court now mandates that every juvenile must be granted an individualized sentencing hearing to ensure youth and attendant mitigating circumstances …

Limits On The Perfect Preventive State, Michael L. Rich

Michael L Rich

Traditional methods of crime prevention—the punishment of the culpable and the preventive restraint of the dangerous—are slowly being supplemented and supplanted by technologies that seek to perfectly prevent crime by making criminal conduct practically impossible. For instance, the federal government is developing in-car technology that would prevent vehicle operation when a driver has a blood alcohol level in excess of the legal limit. Less directly, the anti-circumvention provisions of the Digital Millennium Copyright Act of 2000 try to prevent copyright infringement by eliminating technologies that enable such infringement. Such structural regulation of private conduct is not new, but few scholars …

The Jury As Constitutional Identity, Andrew G. Ferguson

Andrew G Ferguson

This article seeks to re-conceptualize jury service in America. It suggests a new theory that looks at jury service not as a discrete task, but an on-going constitutional identity. Building off a historical tradition that dates from the Founding, but can be traced through the Suffrage Movement and the Civil Rights Era, this theory focuses on reclaiming the lost constitutional connection of jury service.

Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more …

A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins

Brenda A McKinney

Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover

Avidan Cover

Court opinions in the terrorism context are often distinguished by fact finding that relates to risk assessment. These risk assessments‑inherently policy decisions‑are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result courts apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article takes …

Speech Along The Atrocity Spectrum, Gregory S. Gordon

Gregory S. Gordon

In the abstract, speech may have much intrinsic value with its power to facilitate democracy, self-actualization, and good will. But, in certain contexts, it can also be quite deleterious, spawning division, ignorance, and hatred. Within the crucible of atrocity, speech may be similarly Janus-faced. Its power to prevent mass violence is indubitable. But its capacity for enabling mass violence is similarly unquestionable. So the issue arises: when and how may speech work for good or ill in relation to atrocity? This Article grapples with that question. And, in doing so, it finds that the relationship between speech and atrocity should …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Privacy theorists have begun to understand that a consideration of social context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the preservation of expected …

Criminal Constitutional Avoidance, William W. Berry Iii

William W Berry III

Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.

This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have …

Rebalancing The Fourth Amendment, Shima Baradaran

Shima Baradaran

Fourth Amendment decisions primarily rely on balancing tests. None of these tests account for the fundamental flaw that skews the balance in these cases. The Fourth Amendment aims to protect the privacy of all individuals against government intrusion but is always presented to courts by a criminal defendant whose hands are dirty. Thus, when a court considers a balance of privacy interests against a government’s interest in effective law enforcement, the government wins almost every time. Without mitigation of the central weakness in Fourth Amendment balancing—that a criminal defendant is protecting the rights of all of society—these constitutional inquiries fail …

International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson

Michael Anderson

Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.

This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …