Law Commons^™

Departing From Teague: Miller V. Alabama's Invitation To The States To Experiment With New Retroactivity Standards, Eric Schab

Eric Schab

No abstract provided.

The Scarlet Letter: Why Courts’ Reliance On Recidivist Statutes During Sentence Enhancement Hearings May Create Fifth And Eighth Amendment Violations, Jesse S. Weinstein

Jesse Weinstein

No abstract provided.

Solving Batson, Tania Tetlow

Tania Tetlow

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule, a …

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, …

Finding The Foregone Conclusions Of Encryption, Timothy A. Wiseman

Timothy A Wiseman

Encryption is commonly used to protect private information, for both legitimate and illegitimate reasons. Courts have been struggling to determine when, within the bounds of the Fourth and Fifth Amendments, the Courts may compel a defendant in a criminal case to decrypt their data.

This article argues that a broad use of the Forgone Conclusion doctrine would permit the Courts to order a defendant to decrypt their data when the prosecution can show with reasonable particularity the existence and location of the encrypted documents, that they are likely to be incriminating, and that the government can authenticate them without the …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted …

Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case

Jennifer L. Case

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the …

Quasi-Inquisitorialism: Accounting For Deference In Pretrial Criminal Procedure, Jennifer E. Laurin

Jennifer E. Laurin

The actions of police and prosecutors that take place long before a criminal trial are frequently critical to, even dispositive of the accuracy and reliability of case disposition. At the same time the regulatory touch of constitutional criminal procedure in the pretrial realm is notoriously, even insistently, light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely …

Modern Prostitution Reform And The Return Of Volitional Consent, Amanda J. Peters

Amanda J Peters

For decades, prostitution laws in America have focused exclusively on contractual consent: the agreement to exchange sexual services for a fee. Courts and legislatures alike ignored volitional consent, or traditional mens rea, by concentrating on the offer and acceptance of the prostitution agreement. In this way, the law disregarded the actor’s choice to engage in the crime. The de facto strict liability nature of the offense rendered it nearly impossible for prostitutes to successfully raise the defenses of duress and necessity. The failure of the law to distinguish between voluntary and involuntary prostitution resulted in charges, trials, and convictions …

The Perverse Effects Of Efficiency In Criminal Process, Darryl K. Brown

Darryl K. Brown

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bar-gaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end …

Checked In: Real-Time Geolocation Surveillance And The Fourth Amendment, Eric J. Struening

Eric J Struening

Leaks have revealed that the use of personal technology such as cell phones and e-mail plays a large part in how the government obtains national security information. However, it is still an open question of how far the protection of the Fourth Amendment provides an individual against government intrusion in that type of technology. This article examines how the Fourth Amendment applies to the real-time tracking of national security targets through technology. I argue that a non-physical, short-term, warrantless, real-time trace of an individual’s location for national security purposes will not infringe the prohibition against unreasonable searches and seizures. As …

Is There A Justification For Imposing Criminal Liability On Corporate Managers In Tax Legislation?, Karnit Malka

Karnit Malka

No abstract provided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce-Clause Derived, Aggregate Proximate Cause Theory., Adam Lamparello, Charles Maclean

Adam Lamparello

This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the original victim’s harm, instead, on an aggregate proximate cause theory, the original victim would not have been victimized at all had there been no aggregate market of willing possessors for the material. Victims of child pornography, under the federal statute, and via aggregate proximate cause, …

Conditional Release Under The Bail Reform Act: The Solution To Pretrial Detention For ‘Economic Harm’, Edward C. Nazzaro Mr.

Edward C Nazzaro Mr.

This comment examines whether the language of the Federal Bail Statute and the threat of ‘economic harm’ is sufficient to take away the freedom of an accused person awaiting trial. The introduction discusses Bernard ‘Bernie’ Madoff and the conditions of pretrial release used by United States Magistrate Judges to allow Madoff to remain free until conviction. After introducing this concept with a high-profile defendant, the comment provides an overview of the Bail Reform Act and how it was changed in 1984 to include ‘danger’ as a relevant factor in pretrial detention matters, adding to the preexisting power to detain defendants …

Whose Metadata Is It Anyways? Why Riley V. California Illustrates That The National Security Administration's Bulk Data Collection Is A Fourth Amendment Problem, Jesse S. Weinstein

Jesse S Weinstein

No abstract provided.

The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence, Roger Roots

Roger Roots

This article continues to show evidence that the Framers of the Bill of Rights in 1791 likely intended for the exclusionary rule to follow the Fourth Amendment.

Amicus Brief -- Freddie Lee Hall V. State Of Florida, Adam Lamparello, Charles Maclean

Adam Lamparello

IQ cutoffs violate the Constitution. In Atkins v. Virginia, the United States Supreme Court recognized three distinct components to intellectual disability: (1) an intelligence quotient; (2) deficits in adaptive functioning; and (3) onset prior to eighteen. The Florida Supreme Court interpreted Fla. Stat. § 921.137(1) to bar evidence of adaptive disability and early onset if a defendant scored above a 70 on an IQ test. As Justice Perry recognized in his partial dissent, that interpretation will lead to the execution of a retarded man. The Amicus brief argues that the Florida Supreme Court's decision should be reversed because it prohibits …

Making Civil Immigration Detention “Civil,” And Examining The Emerging U.S. Civil Detention Paradigm, Mark Noferi

Mark L Noferi

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest …

Aaron Swartz’S Legacy, Rebecca Gould

Rebecca Gould

“Aaron Swartz’s Legacy,” Academe: Magazine of the American Association of University Professors 95(1): 19-23. Special issue on the “New Public Intellectual.” http://www.aaup.org/article/aaron-swartz%E2%80%99s-legacy#.UtZGm2RDtmk

El Análisis De Teléfonos Móviles Como Técnica De Investigación Criminal, Hector Zayas Gutierrez

Héctor Zayas Gutiérrez

Resumen. El artículo revisa en su primera parte aspectos técnicos relacionados con el funcionamiento de las tecnologías celulares y su potencial como fuentes de prueba en el proceso penal. En la segunda se describen los límites establecidos en el orden jurídico mexicano, tanto en sus fuentes legislativas como en la jurisprudencia; en la tercera se realiza un ejercicio de derecho comparado, señalando la regulación constitucional de la técnica de investigación a la luz de la Cuarta Enmienda de la Constitución de los Estados Unidos de América.

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

Gender Dysphoria In The Jailhouse: A Constitutional Right To Hormone Therapy?, Susan S. Bendlin

Susan S. Bendlin

This Article explores whether incarcerated inmates with Gender Dysphoria, such as Private Manning, have a constitutional right to receive medical treatment for gender re-assignment, and if so, whether they are likely to succeed in suing to obtain treatment if it is not provided by prison officials. Evaluating a prisoner’s Eighth Amendment claim involves two inquiries: an objective component as to whether the inmate displays a “serious medical need”, and a subjective component as to whether the prison officials were “deliberately indifferent” to that need.The issue is a sensitive one because the diagnosis of Gender Dysphoria as a medical illness has …

American Hustle: Abscam, Entrapment And The Senate Expulsion Trial Of Harrison Williams, Henry P. Biggs Phd

Henry P Biggs PhD

American Hustle: Abscam, Entrapment and The Senate Expulsion Trial of Harrison Williams

The recent success of the film American Hustle has renewed curiosity in the events surrounding the Abscam scandal and its subsequent trials. This article begins by detailing the Abscam proposition as well as its players, moving on to address the contours of the defense of entrapment those accused frequently invoked. The article then focuses on the analyses of specific Abscam cases that claimed this defense. Finally, the article considers the specific case of Harrison Williams, a senator from New Jersey and the highest official ensnared in Abscam, documenting …

Remedial Discretion In Constitutional Adjudication, John M. Greabe

John M Greabe

Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.

The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing …