Law Commons^™

Toward A Theory Of Procedural Justice For Juveniles, Tamar R. Birckhead

Tamar R Birckhead

Courts and legislatures have long been reluctant to make use of the data, findings, and recommendations generated by other disciplines when determining questions of legal procedure affecting juveniles, particularly when the research has been produced by social scientists. However, given the United States Supreme Court’s recent invocation of developmental psychology in Roper v. Simmons, which invalidated the juvenile death penalty, there is reason to believe that such resistance is waning. In 2005 the Simmons Court found, inter alia, that based on research on adolescent development, juveniles are not as culpable as adults and, therefore, cannot be classified among the “worst …

A Jury Of One: Opinion Formation, Conformity, And Dissent On Juries, Nicole L. Waters, Valerie P. Hans

Cornell Law Faculty Publications

Approximately 6 percent of criminal juries hang. But, how many dissenters carry the jury, hang the jury, or conform to the majority’s wishes? This article examines the formation of individual verdict preferences, the impact of deliberation, and the role of the dissenter using data from nearly 3,500 jurors who decided felony cases. Jurors were asked: “If it were entirely up to you as a one-person jury, what would your verdict have been in this case?” Over one-third of jurors, privately, would have voted against their jury’s decision. Analyses identify the characteristics of jurors who dissent, and distinguish dissenters who hang …

Of Atkins And Men: Deviations From Clinical Definitions Of Mental Retardation In Death Penalty Cases, John H. Blume, Sheri Johnson, Christopher W. Seeds

Cornell Law Faculty Publications

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical …

Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan

Working Paper Series

Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another self." Forgiving, the …

Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition Of The Death Penalty And Convincing Other States To Follow Suit, James Johnston

James B Johnston

For those who detest capital punishment Christmas arrived early in 1997. On December 17, 2007 New Jersey became the first State to abolish the death penalty via enactments from both the executive and legislative branches of government. The responses both domestically and abroad have been overwhelmingly supportive. New Jersey was able to do so thanks to the work of the New Jersey Death Penalty Study Commission; a blue ribbon panel of individuals appointed by Governor Corzine to study capital punishment and provide their findings to the State Legislature and the Governor. The commission recommended the death penalty be abolished and …

Shaping Modern Sentencing: Three Giants, Steven Chanenson, Mark Miller

Steven L. Chanenson

No abstract provided.

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Vera Bergelson

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s …

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Vera Bergelson

The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not. Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then …

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

Mark F. Grady

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

The Next Era Of Sentencing Reform ... Revisited, Steven Chanenson, Mark Bergstrom, Frank Dermody, Jordan Hyatt

Steven L. Chanenson

No abstract provided.

The Aftermath Of Crawford And Davis: Deconstructing The Sound Of Silence, Kimberly D. Bailey

All Faculty Scholarship

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Cornell Law Faculty Publications

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Fact Suppression And The Subversion Of Capital Punishment: What Death Penalty Foes On The Supreme Court And In The Media Do Not Want The Public To Know, Lester --- Jackson

LESTER JACKSON

The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon …

Back To Fundamentals: The Worsening Results Of Ignoring The Social Contract In Baltimore City, John T. Stinson

John T Stinson Jr.

This article examines how "get tough" law enforcement policies like Project EXILE, which target otherwise underserved low-income communities, often result in deeper rifts between poor neighborhoods and "mainstream society." The article contrasts the Maryland EXILE program implemented in Baltimore City by the U.S. Attorney, D. Md., with the "Stop Snitching" phenomenon, concluding that both work together to advance the erosion of the traditional social contract thought to undergird American democracy.

An Attack On Self-Defense, Reid G. Fontaine

Reid G. Fontaine

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion. Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid. In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification. Because this three-requirement framework raises …

No Rational Basis: The Pragmatic Case For Marijuana Law Reform, Eric Blumenson

Eric Blumenson

This article presents a critique of marijuana prohibition and suggests some alternative regulatory approaches that would be more productive and consonant with justice. Part I relies on a forty-year empirical record to demonstrate that (1) reliance on a law enforcement approach has aggravated rather than mitigated the risks involved with marijuana use, and (2) criminalization, which results in the arrest of more than 700,000 Americans annually for possession of any amount of marijuana, is an inhumane and destructive response to an act that almost 100 million Americans have committed. Part II assesses the relative merits of several alternative reform policies, …

Pretend “Gun-Free” School Zones: A Deadly Legal Fiction, David B. Kopel

David B Kopel

Most states issue permits to carry a concealed handgun for lawful protection to an applicant who is over 21 years of age, and who passes a fingerprint-based background check and a safety class. These permits allow the person to carry a concealed defensive handgun almost everywhere in the state. Should professors, school teachers, or adult college and graduate students who have such permits be allowed to carry firearms on campus? In the last two years, many state legislatures have debated the topic. School boards, regents, and administrators are likewise faced with decisions about whether to change campus firearms policies. The …

The Bridge Connecting Pontius Pilate's Sentencing Of Jesus To The New Jersey Death Penalty Study Commission's Concerns Over Executing The Innocent: When Human Beings With Human Flaws Determine Guilt Or Innocence And Life Or Death, James B. Johnston

James B Johnston

No abstract provided.

The Judicial Ethics Of Criminal Law Adjudication, Keith Swisher

Keith Swisher

Judges in the United States regularly (and often harshly) are disciplined for “bad” criminal law decisions. On a number of levels, it is baffling that this ethical “Rule” — punishing judges for errors of adjudication — has never been the subject of in-depth critical analysis. Thus, this Article is surprisingly the first scholarly work fully deconstructing the Rule (along with attendant considerations in criminal law adjudication) and addressing directly many of the tough questions that have been avoided or mistreated. This Article begins by examining an unexamined, “yet earthshaking” movement—that is, the modern invention of using judicial conduct commissions (“judge …

Federal Criminal Discovery: Handbook Regarding Exculpatory & Impeachment Material, R. Michael Cassidy, Douglas Woodlock, Leo Sorokin

R. Michael Cassidy

No abstract provided.

Prosecuting Domestic Violence: A Philosophical Analysis, Michelle Dempsey

Michelle Madden Dempsey

The main question which motivates the inquiry undertaken in this book is: what should public prosecutors do when victims withdraw support for domestic violence prosecutions? The answer defended herein can be summarized as follows: within the realm of justified (permissible) action, prosecutors should respond effectively; which is to say that, ceteris paribus, domestic-violence prosecutors should respond as feminists. This claim is intended as a provocative formulation of the proposition that domestic violence prosecutors should act for reasons generated by the value of reconstituting their states (and communities) as less patriarchal. This book defends that claim in two steps: first, it …

Confusing Cause And Effect, Lawrence Rosenthal

Lawrence Rosenthal

This brief essay commenting on Paul Butler's article, "Race Based Jury Nullification: Black Power in the Criminal Justice System," prepared for the Criminal Law Conversations project, argues that Professor Butler's proposal of race-based jury nullification to address the African-American community's perception of racial injustice in the administration of the criminal laws, particularly the drug laws, confuses cause and effect. The most important cause of African-American dissatisfaction with the criminal justice system is its inability to keep inner-city communities safe. A regime of race-based jury nullification, in turn, would aggravate rather than ameliorate this serious problem.

“Just The Facts”: Detective Fiction In The Law School Curriculum, Robert Power

Robert C Power

No abstract provided.

Lawyers And The War, Robert Power

Robert C Power

No abstract provided.

Revolution Or Evolution: Recent Developments In American Federal Criminal Sentencing, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.

Fair Process And Fair Play: Professionally Responsible Cross-Examination, John F. Nivala

John F. Nivala

No abstract provided.

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

Secret Indictments: How To Discourage Them, How To Make Them Fair, John T. Stinson

John T Stinson Jr.

This article reveals an overlooked problem in federal criminal procedure that permits the government to indict individuals in secret and stall prosecutions to the detriment of fundamental rights. Constitutional and statutory protections ensure that criminal prosecutions in America are swift, open, and subject to thorough confrontational testing. Rule 6 of the Federal Rules of Criminal Procedure, however, permits the open-ended cloaking of criminal indictments following an ex parte government request for a seal. Court interpretations of Rule 6 sealing have further eroded fundamental protections by declaring that a showing of substantial prejudice by a criminal defendant will be the only …

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

Brian Gallini