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Articles 1 - 17 of 17
Full-Text Articles in Law
Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow
Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow
Michigan Law Review
Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …
Reckless Juveniles, Kimberly Thomas
Reckless Juveniles, Kimberly Thomas
Articles
Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …
Targeting And The Concept Of Intent, Jens David Ohlin
Targeting And The Concept Of Intent, Jens David Ohlin
Michigan Journal of International Law
International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well-settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems — often civil law jurisdictions — prosecutors, judges and even scholars have …
A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey
A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey
Michigan Journal of Race and Law
Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him …
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
Michigan Law Review
The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Michigan Telecommunications & Technology Law Review
Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court's recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent--willful blindness--into the statute for patent infringement, a civil offense. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to …
The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg
The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg
University of Michigan Journal of Law Reform
Professor Reid Fontaine's article, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, makes a convincing case for treating heat of passion wholly as an excuse not a justification, as the only sensible way to comprehend its various forms. In doing so, Professor Fontaine stimulates further thinking about heat of passion doctrine, along two dimensions.
The Provocation Defense And The Nature Of Justification, Marcia Baron
The Provocation Defense And The Nature Of Justification, Marcia Baron
University of Michigan Journal of Law Reform
In this Essay, I evaluate the evidence of "adequate nonprovocation” that Fontaine puts forward to show that the heat of passion defense is decidedly an excuse (more precisely, a partial excuse). I will be focusing my remarks on the traditional heat of passion defense.
Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner
Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner
Michigan Journal of Race and Law
This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the …
Process, The Constitution, And Substantive Criminal Law, Louis D. Bilionis
Process, The Constitution, And Substantive Criminal Law, Louis D. Bilionis
Michigan Law Review
Criminal law scholars have pined for a substantive constitutional criminal law ever since Henry Hart and Herbert Packer first embraced the notion in the late 1950s and early 1960s. To this day, scholars continue to search for a theory fhat giv:es content to, in Hart's words, "the unmistakable indications that the Constitution means something definite and spμiething serious when it speaks of 'crime.'" To their dismay, the Supreme Court has - with two exceptions - seemingly resisted the notion. The two exceptions are familiar. First came the 1957 case of Lambert v. California, in which the Court came as close …
Outrageous Fortune And The Criminalization Of Mass Torts, Richard A. Nagareda
Outrageous Fortune And The Criminalization Of Mass Torts, Richard A. Nagareda
Michigan Law Review
The case of the blameworthy-but-fortunate defendant has emerged as one of the most perplexing scenarios in mass tort litigation today. One need look no further than the front page of the newspaper to find examples of mass tort defendants said to have engaged in irresponsible conduct - even conduct that one might regard as morally outrageous in character - but that nonetheless advance eminently plausible contentions that they have not caused harm to others. This issue is not merely a matter for abstract speculation. A now-familiar mass tort scenario involves a defendant that markets a product without informing consumers about …
Are Threats Always "Violent" Crimes?, Jeremy D. Feinstein
Are Threats Always "Violent" Crimes?, Jeremy D. Feinstein
Michigan Law Review
This Note argues that because the generally accepted legal meaning of violence is the use - or the risk of the use - of physical force so as to injure, damage, or abuse, threats only should be considered violent if they involve a risk of the use of physical force. Part I examines the substantive law of threats to determine if they inherently involve a risk of the use of physical force, and concludes that they do not. Part II studies the meaning of the term violence, and argues that both courts and dictionaries understand the term to mean the …
Extraterritorial Application Of Rico: Protecting U.S. Markets In A Global Economy, Kristen Neller
Extraterritorial Application Of Rico: Protecting U.S. Markets In A Global Economy, Kristen Neller
Michigan Journal of International Law
The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted by Congress in 1970 to combat organized crime in America. Since its enactment, it has been used extensively in both the civil and criminal arenas. With the participation of foreign corporations, foreign subsidiaries, and foreign actors in general in the U.S. economy, it is only a matter of time before foreign defendants will be sued under RICO. This Note will discuss whether RICO should be applied extraterritorially: that is, whether federal courts should assume jurisdiction over foreign entities as defendants in RICO claims. First, RICO's language, legislative history and application …
Sales-Criminal Law- Elements Of Unlawful Sale Of Narcotics, Robert W. Shadd
Sales-Criminal Law- Elements Of Unlawful Sale Of Narcotics, Robert W. Shadd
Michigan Law Review
Appellant, known to be peddling morphine, was contacted by a federal narcotic inspector who posed as a prospective purchaser. A price having been agreed upon, appellant permitted the inspector to handle and examine several of the tablets. After stating that he would take the drug, the inspector placed appellant under arrest. From a conviction of selling narcotics in violation of the Harrison Act, appellant appealed. Held, affirmed. A sale of narcotics is not complete without payment of the purchase price or delivery, but the facts here warranted a jury in finding that delivery was made. Barnett v. United States …
Criminal Law-Requisite Mental Element In Criminal Assault, Charles Hansen
Criminal Law-Requisite Mental Element In Criminal Assault, Charles Hansen
Michigan Law Review
Defendant was driving his car after dark at a speed greatly in excess of that prescribed by a local ordinance. While proceeding in this fashion, the car overtook and struck a bicycle, severely injuring a passenger thereon. From a conviction of criminal assault of the passenger, defendant appealed. Held, affirmed. The necessary intent to injure a specific passenger of a vehicle may be inferred from the recklessness evidenced by driving at night at a speed greatly exceeding the statutory limit. Wellons v. State, (Ga. App. 1948) 48 S.E. (2d) 925.
Criminal Law And Procedure - Charging One Theft As Several Larcenies, A Series Of Thefts As A Single Larceny, Michigan Law Review
Criminal Law And Procedure - Charging One Theft As Several Larcenies, A Series Of Thefts As A Single Larceny, Michigan Law Review
Michigan Law Review
The gist of the crime of larceny both at common law and under statutes is a fraudulent taking of the personal property of another with an intent to appropriate it. One taking coupled with the necessary intent normally constitutes a single offense of larceny, and normally the courts limit their inquiry to whether there is such taking and intent; if the finding is in the affirmative the crime of larceny is established. Yet the courts tend to go beyond these limits of inquiry where the problem arises whether a single offense or several distinct offenses have been committed. Two types …
Criminal Law And Procedure - Interpretation Of Statute, Michigan Law Review
Criminal Law And Procedure - Interpretation Of Statute, Michigan Law Review
Michigan Law Review
Convicted of the statutory crime of falsely uttering a bank check, defendant appealed on the ground that the instrument in question was a promissory note. It was in appearance and form a check except for the substitution of "will pay" for "pay" and the addition of the words "payable at" before the name of the bank. Held, affirmed, the court construing the instrument as a check. State v. Doudna, (Iowa, 1939) 284 N. W. 113.