Law Commons^™

Not Demented Enough: Dementia And Competency To Stand Trial, Rashmi Goel

Sturm College of Law: Faculty Scholarship

Although competency to stand trial holds a vaunted position among the due-process rights in our criminal justice system, its current application is a mere shadow of the original promise articulated in Dusky v. United States. The competency-to-stand-trial requirement is supposed to protect the mentally ill and the mentally impaired from criminal trial, but the requirement has been continually chipped away, both doctrinally and practically. As a result, it no longer protects the most vulnerable. People with dementia, most often elderly with cognitive impairments, face a perilous ordeal when caught in the criminal justice system. And, as dementia rates increase, more …

Policing As General Warrants, Warren Buff, Brandon Hasbrouck

Scholarly Articles

The drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst abuses they had experienced under English rule. Prominent businessmen—many of them engaged in smuggling— found their homes ransacked in search of contraband on flimsy evidence and without any reason given for the disruption of their business and consequent enrichment of government agents. The Fourth Amendment addressed the use of general warrants and writs of assistance to allow government agents to conduct broad searches with limited scrutiny. In the early years of the Constitution, this had little practical effect, because public …

Battered Woman Syndrome: A Legal Defense To Homicide, Savannah Plaisted

Northwestern Law Journal des Refusés

No abstract provided.

Legalist Realism, Mark A. Drumbl

Scholarly Articles

This essay explores the scholarly footprint of Professor Megan Fairlie. This is a footprint of "legalist realism." Professor Fairlie was greatly concerned with legalism, in other words, the centrality of due process, the rights of the defendant, and human dignity in trials of individuals accused of the most heinous crimes. She was committed to put the law in international criminal law. And her view was one of realism, notably, that the structure of international institutions must be mindful of power politics, and expectations and ambitions ought to recognize the limitations and possibilities of politics in order to retain legitimacy and …

Introduction, In Children And Violence: Agency, Experience, And Representation In And Beyond Armed Conflict (Christelle Molima Bameka Et Al. Eds., 2025), Christelle Molima Bameka, Mohamed Kamara, Mark A. Drumbl

Books and Chapters

This multi-disciplinary volume provides an innovative approach to children and violence, looking beyond the existing literature that focuses on child soldiers in the ‘Global South.’

Harnessing expert contributions from over a dozen countries, the book examines the relationship between children and violence, with a focus on children ensnared in military conflict, embroiled in criminal gangs, and enmeshed in political activism. It analyses how children join fights, how they fight, and what happens to them after fighting officially ends. It addresses cutting- edge issues such as cyberwars, self-defence, intergenerational trauma, gender fluidity, racism and state surveillance. Throughout, the book underscores the …

Children As Informers And Denouncers, In Children And Violence: Agency, Experience, And Representation In And Beyond Armed Conflict (Christelle Molima Bameka Et Al. Eds., 2025), Mark A. Drumbl, Barbora Holá

Books and Chapters

This chapter explores the use of children in propaganda and informing networks as forms of violence. While this chapter nests in 20th- century Communism in the Soviet Union and Czechoslovakia, the interface of children with these networks is not unique to these times and places. Indeed, these experiences link to those elsewhere, thereby elucidating the dually manipulated and agentic role of children in a regime’s fight for legitimacy and thereby blending with a number of contributions to this volume including those by Mohamed Kamara and Sylvie Bodineau. The point of this chapter is not to particularise (or pathologise) Soviet and …

Fragmentation Of International Cybercrime Law, Mailyn Fidler

Law Faculty Scholarship

Cybercrime is global. But legal approaches to combating cybercrime have been fragmented. The first such multilateral legal mechanism, the Budapest Convention on Cybercrime, was launched in 2001 and positioned by its primarily Western drafters as a global instrument. But it has struggled to achieve full international uptake. Instead, many states have used regional organizations to create their own legal mechanisms addressing cybercrime and cybersecurity threats. More recently, the UN Convention on Cybercrime has emerged as an alternative to this fragmented landscape. But the emergence and significance of this “convergent” option cannot be understood without the context of the deep fragmentation …

Title 18’S Property Conundrum, Karen E. Woody, Joshua L. Clardy

Scholarly Articles

“Property,” in legal terms, carries significant weight. Once an object is heralded as “property,” that object becomes a step closer to being afforded the protections of the Constitution, offered equitable remedies at a court’s disposal, or even subjected to taxation by the state or federal government. Defining an object as “property” also puts it within the reach of the Title 18 property fraud statutes. Title 18’s fraud statutes have been often lauded by federal prosecutors for their “extraordinary utility.” In their current iteration, these statutes criminalize schemes to defraud “money,” “property,” and “the intangible right of honest services.” But what …

Kennedy V. Louisiana And The Future Of The Eighth Amendment, Alexandra L. Klein

Scholarly Articles

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024. These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency. Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana. These laws, which resemble state attempts …

Calling Lawyers In, Instead Of Out: The Role Of The Conscious Lawyer, Siwatu-Salama Ra

JCLC Online

No abstract provided.

What Does Npep Mean To Us?, Northwestern Prison Education Program

JCLC Online

The Northwestern Prison Education Program (NPEP) provides currently incarcerated individuals across Illinois an undergraduate education from Northwestern University. At Stateville and Logan Correctional Centers, admitted NPEP students work toward a Bachelor of Science degree, taking a full course load taught by Northwestern professors within the prisons’ walls. On November 14, 2023, the inaugural cohort of NPEP students at Stateville graduated from the program, making history as the first incarcerated students in the United States to earn a bachelor’s degree from a top ten university as ranked by U.S. News and World Report. This piece is a collection of personal reflections …

The Meaning Of Life, In Michigan: Mercy From Life Sentences Under The State Constitution, Molly Bernstein, David Shapiro

JCLC Online

Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release through rehabilitation. Today, however, Michigan has among the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release.

In 1850, Michigan revised its state constitution to prohibit “cruel or unusual punishment,” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment. This disjunctive prohibition, which subsequent Michigan constitutional conventions retained, prohibits both “cruel” sentences and “unusual” sentences. We argue …

For Official Violence, The Devil's In The Dehumanizing Details, Rachel Kincaid

JCLC Online

In Excessive Force in Prison, Professor Sharon Dolovich tackles the shortcomings of the Eighth Amendment’s cruel and unusual punishment doctrine to govern uses of official violence against prisoners. She argues that law enforcement officers owe a duty of care and protection to incarcerated people, but that duty of care and protection is undermined by the dehumanization and demonization of prisoners. Professor Dolovich thus advocates for shifting the doctrinal standard for excessive force under the Eighth Amendment to one based on objective reasonableness, paired with jury instructions explicitly reminding jurors of incarcerated victims’ humanity. To counteract the vagaries of such an …

From Oppenheimer To Trump: An Exploration Of The American History Of Prosecution And Persecution In Classified Information Dissemination, Samuel Bevenour

JCLC Online

Robert Oppenheimer, the father of the atomic bomb, was stripped of his security clearance before documents were properly classified and without access to exculpatory evidence in what amounted to a show trial. The modern, peace-time classification system has expanded into an arguably uncontrollable leviathan that has proven unable to be curtailed by either political party despite bipartisan support. The usage of the related Espionage Act to enforce the ever-growing secrecy state has a problematic history of being utilized in politically motivated prosecutions in which defendants still face an uphill battle to gain access to exculpatory information. These prosecutions, under the …

Juvenile Drug Offenses: Rethinking Criminal Justice Approaches And Intervention Strategies, Lucas Kelly

JCLC Online

Juveniles, whose offending nature fundamentally differs from that of adults, should not be subjected to the traditional criminal justice system for drug offenses. Juvenile drug offenders warrant heightened attention due to their diminished capacity for reasoned judgment, increased susceptibility to the effects of drugs, the profound impact that criminal drug charges have on their future, and the possible presence of Substance Use Disorder. This Comment breaks down ways in which the U.S. has handled, and currently handles, juvenile drug offenders. I will also explore the long-term and short-term effects of drug convictions for juveniles, the issue of culpability and susceptibility …

A Practitioner's Response To "Excessive Force In Prison": The Real-World Implications Of Professor Dolovich's Proposed 8th Amendment Standard, Alan Mills

JCLC Online

In Excessive Force in Prison, Professor Sharon Dolovich has proposed a new standard for liability in excessive force cases brought by prisoners against prison officials, shifting the Eighth Amendment analysis from its current deference to correctional officers’ judgment to a “morally robust reasonableness standard.”

While Professor Dolovich’s argument is righteous and compelling, its potential to practically impact prison litigation is lacking. This Article responds to Professor Dolovich’s recent piece from the perspective of a practitioner with decades of experience litigating prisoners’ rights cases in state and federal court. Based on this experience, this Article suggests that Professor Dolovich’s new …

National Security Issues Arising In Anticorruption Enforcement, Anthony J. Lewis, Aisling O'Shea

American University National Security Law Brief

The overlap between national security and corruption has long been recognized; however, the government’s views on the nature of the overlap have shifted over time. For instance, in June 2021, the Biden administration announced an initiative to combat corruption as a core national security interest. The administration ordered a review by fifteen government agencies and offices, including the Central Intelligence Agency and the Office of the Director of National Intelligence. Then, in February 2025, the Trump administration declared that “overexpansive and unpredictable” enforcement of the Foreign Corrupt Practices Act of 1977 (“FCPA”) “actively harms American competitiveness and, therefore, national security.” …

Diplomatic Practices: Activating The Crime Of Aggression, Noah Weisbord

American University International Law Review

At midnight on Friday, December 15, 2017, a century of multilateral negotiations over the definition and jurisdictional reach of the crime of aggression—leadership responsibility for aggressive war—was on the brink of collapse. Almost every controversial drafting issue had been negotiated and resolved, and International Criminal Court (ICC or the Court) States Parties were gathered at the United Nations (U.N.) in New York to activate ICC jurisdiction over the “supreme international crime.” According to aggression scholar Annegret Hartig, “activation was expected to be comparable to a mere turning on of lights.” Just two states, the U.K. and France, were blocking the …

Fraud In Feeding Our Future: An Analysis Of “The Largest Pandemic Relief Fraud Scheme Yet”, Alena Johnston

Criminal Law Practitioner

Since the 1930s, the public school system in the United States has provided a distinct place for students to develop, learn, and grow.  Public schools level the playing field for students in academics, allowing them to receive an education at no direct cost. However, students from economically disadvantaged backgrounds continue to face challenges, and their inability to secure nutritious meals can affect their ability to perform academically. In 1946, President Harry Truman signed the National School Lunch Act, forming the first Child Nutrition Program in the United States to remedy the food security issue.

 The program was implemented as “a …

Juror Certainty About Firearm Evidence: Examination Effects, Dr. Amelia Shooter, Dr. Paraic Scanlon, Professor Sarah L. Cooper

Criminal Law Practitioner

Firearms examiners can evaluate associations between suspect ammunition and ammunition test-fired by a suspect firearm by microscopically comparing tool marks on both projectiles. This practice has been criticized, including by the National Academy of Sciences, yet firearms examiners routinely testify as experts in the United States. Jurors must determine the weight of expert evidence, which lawyers can aim to discredit on cross-examination or rehabilitate on redirect-examination. Using online vignettes, the authors investigated how both cross-examination and redirect-examination affected potential U.S. jurors' certainty about expert firearms evidence.

Participants (n=114) were asked to rate their certainty (on a scale of 0-100) about …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Climate Prosecution As Climate Regulation, Cindy J. Cho

Articles by Maurer Faculty

Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must …

Criminalizing Ecocide: An Opportunity To Embed The Inseparability Of Humans From Nature Into The Law, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Amid widespread acknowledgment that we live on a planet in peril, the term “ecocide” packs a powerful rhetorical punch. Extant regulatory approaches to environmental protection feel insufficient in the face of the triple threat of climate change, pollution, and biodiversity loss. International criminal prosecution for ecocide, by contrast, promises to meet the moment, and a recent proposal to introduce ecocide into the canon of core international crimes is gaining traction. Assuming the push to criminalize ecocide continues to gain momentum, this Article argues that the primary (and perhaps, sole) benefit that international criminal law can offer in this context is …

A Restorative Justice Alternative For Trafficking Survivors: The Need For A Collaborative Approach In Establishing A Pilot Program Addressing Survivor-Articulated Needs, Stephanie Richard, Suzanne S. La Pierre

Connecticut Law Review

Human trafficking survivors not only suffer physical and psychological harm during the commission of the crimes against them, but also are often further harmed through forced involvement in the criminal justice system. With the current focus on apprehending and punishing perpetrators as the primary tool promoted in the United States to prevent trafficking, survivors forced to be witnesses against their perpetrators lose their self-determination in ways replicating the abusive patterns of their traffickers. To aid investigation and prosecution of traffickers, they are required to provide testimony reliving their experiences. Forced testimony is also often the only option available for avoiding …

Eye-For-An-Eye: High Compensation Awards Against States As Undue Punishment, David M. Bigge, Jonathan M. White

American University International Law Review

In observing the past several years’ debates regarding reparations under international law, we are reminded of lessons we learned as children in Sunday School. The Jewish and Christian sacred texts address the principle of retributive justice reflected in the Biblical phrase “an eye for an eye, a tooth for a tooth.” During the early rabbinic period, the great sages grappled with the import of this rule. Jesus famously rejected the rule in favor of mercy: “turn the other cheek.” The rabbis were not as interested in rejecting this rule in its entirety as ensuring that it yielded justice.

Is It Possible To Draft A Universal Criminal Code?, Paul H. Robinson

American University International Law Review

The world contains hundreds of distinct communities with their own traditions and values. One might assume that, despite the best efforts of international organizations, it would be impossible to draft a criminal code that could operate effectively for all countries. Is that the case? If one tried to construct a universal criminal code, what sorts of challenges and limitations with the effort face?

Blood Cobalt: Unmasking And Charging Corporations For Involvement In International Law Violations In The Democratic Republic Of Congo, Bolu Jegede

American University International Law Review

Joint Criminal Enterprise (JCE) is a legal doctrine developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold participants in a criminal enterprise equally liable for all results of the group’s criminal actions, even if the individuals were not directly involved in committing the crimes. While traditionally used to prosecute individual criminal actions, JCE provides a legal pathway to hold corporations criminally liable for their actions that further international law violations. Although corporations currently do not have specific, listed responsibilities under international law, they are required to respect human rights and ensure their activities do not perpetrate …

Crippled By War: Arguing Russia’S Actions In Ukraine Constitute Disability Persecution Under Article 7(1)(H) Of The Rome Statute, Davis Hayman

American University International Law Review

During the ongoing conflict between Russia and Ukraine, Russia implemented a “humanitarian aid” program which moved Ukrainian people with disabilities to Russia or Russian-controlled areas. The Prosecutor for the International Criminal Court issued arrest warrants under the theory that this program constitutes war crimes.

This Comment argues this program further qualifies as the crime of persecution against Ukrainians with disabilities. This piece first analyzes the crime of persecution, its relationship with other crimes and how non-enumerated groups can receive its protection. Next, this piece analyzes international human rights developments related to people with disabilities to show they qualify for such …

From One Prison To Another: The Inordinate Criminalization Of Women Who Kill Abusive Partners And A Proposed U.N. Response, Annalie Buscarino

Case Western Reserve Journal of International Law

Paradoxically, criminal justice systems around the world punish women who kill abusive partners with inordinate sentences despite explicitly recognizing the victimization that led them to homicide. This Note examines how universally entrenched gender stereotypes lead to such overcriminalization and amount to a violation of women’s rights to equality before the law. This Note then proposes a U.N. resolution offering guidelines for criminal justice systems to craft appropriate judicial responses to women’s survival strategies.

Correcting Course: How Congress Can Streamline U.S. Engagement With The International Criminal Court, Sophia N. Ramcharitar

Cardozo Law Review de•novo

Since its participation in the 1998 Rome Conference, the United States has vocalized opposition to key components of the International Criminal Court’s (ICC) jurisdiction. This opposition has informed longstanding positions taken by the executive branch and motivated anti-ICC legislation passed by Congress. Support for the ICC’s investigation in Ukraine challenged these narratives across the legislative and executive branches, but the ICC’s arrest warrants of Israeli officials in 2024 renewed Congress’s heightened skepticism of the court and sowed political divisions on efforts to sanction the ICC. Congress’s oscillation on the ICC within the past several years prompts a larger question of …