Law Commons^™

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

Rutgers Law School (Newark) Faculty Papers

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 …

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

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 …

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Making Crime (Almost) Disappear, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

This essay sketches the outlines of a future world in which crime has been drastically reduced. The author proposes two radical approaches to achieve this crime reduction. Some crimes, like drunk driving, can be almost completely eliminated by using technology to prevent the operation of a vehicle by a driver with a blood alcohol greater than the permissible level. Other crimes, like larceny or burglary of expensive items, can be made extremely easy to solve by requiring the installation of micro chips that will, when activated, broadcast their location to police.

To the objection that it will be expensive to …

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems …

Hudson And Samson: The Roberts Court Confronts Privacy, Dignity, And The Fourth Amendment, John D. Castiglione

ExpressO

This article critically analyzes Samson v. California and Hudson v. Michigan, which were the Roberts Court's first major Fourth Amendment decisions. In Samson, the Court upheld a California law allowing government officials to search parolees without any suspicion of wrongdoing. In Hudson, to the surprise of almost every observer, the Court held that knock-and-announce violations do not carry with them a remedy of exclusion. What was most notable about Hudson was not only that it rejected what every state and every federal court, save one, believed to be the proper remedy for knock-and-announce violations, but that it called into question …

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Principled Consequentialism, Hamish C. Stewart

ExpressO

This Article characterizes and seeks to reconcile two competing approaches to legal reasoning, through the lens of the problem of the determinacy of legal doctrine. On the “neo-formalist” approach, characteristic of many modern liberal scholars, the appropriate doctrinal answer to any legal problem can be determined by working out, in a quasi-deductive way and in isolation from consequentialist considerations, the implications of a small and stable set of legal principles. On the “neo-realist” approach, characteristic of many economic analysts of law but also of certain leftist critics of liberalism, principles provide no determinate answer to legal problems; the only way …

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

Dialogic Allocution, Felix Valenzuela

ExpressO

This Article argues in favor of increasing the scope of the national sentencing dialogue in order to remedy the current sentencing defects. The increase in scope hinges on expanding the role of allocution within criminal sentencing. By treating allocution as seriously as the Federal Rules do, new discussants will contribute creative solutions for the defects, while at the same time enhancing institutional and ontological legitimacy. To achieve that end, the Article proposes a modified view of allocution. This dialogic allocution unifies the judge and defendant as co-discussants in the national debate, rather than pitting them against each other. The Article …

Cyber-Extortion: Duties And Liabilities Related To The Elephant In The Server Room, Adam J. Sulkowski

ExpressO

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim's information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns.

Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand.

Awareness of the risks of cybercrime …

Prosecutors: Factors To Aid Your Filing Decisions With Respect To Fatal Traffic Collisions, Kimberly Rebecca Bird

ExpressO

As you may know, on a fairly regular basis, prosecutors are faced with filing decisions with respect to fatal traffic collisions. Many of them, of course, do not involve criminal negligence and are not prosecuted as crimes. Sometimes, on the other hand, the circumstances are egregious and the decision to be made is whether to file a case as a vehicular manslaughter or as a murder, on an implied malice theory. There are a finite number of California Supreme Court and Court of Appeal cases (beginning with People v. Watson (1981) 30 Cal.3d 290) that have addressed the sufficiency of …

Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak

ExpressO

This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature.

The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates …

An Unprecedented Curtailment Of Liberty: Samson V. California And Its Gift Of A Limitless Blank Check For “Arbitrary, Capricious, Or Harassing” Searches And Seizures , Jillian Ostrove

ExpressO

No abstract provided.

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

ExpressO

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule …

Detention For The Purpose Of Interrogation As Modern "Torture", Rinat Kitai-Sangero

ExpressO

Although the Court in Miranda stated that custodial interrogation is designed to undermine the will of the interogee, it has not prohibited the admission of confession given under such circumstances. It rather assumed that it is possible to dispel the pressures of a custodial interrogation by means of proper safeguards. The article claims that there is no plausible way to dispel the coercive atmosphere engendered by a custodial interrogation. Custody today constitutes a refined version of torture used in the past in order to extract confessions. Consequently, the confession of a suspect under circumstances of custodial interrogation is involuntary and …

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

ExpressO

On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

Death Penalty Jurisprudence In New York And The Supremacy Clause Of The United States Constitution: How Supreme Is It ?, Joseph E. Fahey

ExpressO

This article deals with the treatment of the Supremacy Clause by the New York Court of Appeals in the evolution of its death penalty jurisprudence. It traces the application of the Clause by the Court and its abandonment in its imposition of stronger guarantees under the New York State Constitution

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

ExpressO

This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted in …

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel

ExpressO

This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s jurisprudence. Finally, …

Turning A Blind Eye To Misleading Scientific Testimony: Failure Of Procedural Safeguards In A Capital Case, William C. Thompson

ExpressO

In September 1999, Robin Lovitt was convicted and sentenced to death for the murder of a pool hall manager in Arlington, Virginia. The DNA evidence that was a key part of the government’s case was presented in a misleading and unfair manner. In this case study, we first examine the way in which DNA evidence was misused. We then discuss the failure of the legal system at all levels to recognize and remedy this problem. Our goal is to explain how a system that supposedly leaves no stone unturned in capital trials managed to miss or ignore a crucial problem …

Wallace V. City Of Chicago And Accrual Of 1983 Claims, Michael D. Frisch

ExpressO

This comment will analyze the recent 7th circuit case, Wallace v. City of Chicago. By ruling that claims under 1983 accrue from the moment of the injury, Wallace basically prevents convicts from recovering under 1983. I will examine the case and suggest resolutions for when the Supreme Court hears the case this term. See 440 F.3d 421

One Small Step: The Past, Present, And Future Of The Federal Sentencing System , Matthew Jill

ExpressO

The federal sentencing guidelines, which focus on offense based statistical consistency, had a ripple effect that molded the entire federal sentencing system in it’s wake; this article is an individual case study demonstrating the flaws of a consistency based sentencing system, the injustice such a system can create, and why United States v. Booker is only the first step in creating a fair and effective sentencing system.

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer

ExpressO

In this article the author puts forth an approach to regulating Situational Crime Prevention (SCP) (i.e. steps to preemptively eliminate or reduce crime, such as preemptive exclusion and closed circuit TV monitoring in Mass Private Space (i.e. private property that has characteristics normally associated with public spaces, such as a large shopping mall).

It has become increasingly common for owners of mass private space to employ SCP techniques such as close circuit television monitoring, exclusion of persons based upon behavior or risk factors and limits on attire, such as colors associated with gangs. While there has been a lively scholarly …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …