Law Commons^™

A Propósito De Un Elemento Esencial De La Defensa De La Competencia En Europa: Las Facultades De Investigación De La Comisión En Materia De Inspección (About An Essential Element Of The European Antitrust: Commission Investigation Faculties Of Inspection), Jesús Alfonso Soto Pineda

Jesús Alfonso Soto Pineda

En base a la prolongación de las facultades de investigación que le han sido proporcionadas a la Comisión Europea para combatir la existencia de acuerdos colusorios en el ámbito comunitario, el presente artículo expone las condiciones en las cuales el poder percibido con mayor sensibilidad desde el terreno empresarial, la inspección, debe ser puesto en marcha por la máxima autoridad comunitaria de competencia, analizando en detalle la contradicción natural que se presenta entre los objetivos propios de la inspección y dos postulados básicos relacionados con el derecho de defensa, como lo son el secreto profesional y el derecho a guardar …

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Deseriee A. Kennedy

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed time-lines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Retribution And The Secondary Aims Of Punishment, Gerard V. Bradley

Gerard V. Bradley

Punishing criminals involves more than visiting unwelcome experiences–the rack, the gallows, confinement, sitting in a corner–upon them. Privations such as these constitute the behavioral substratum, the raw material of punishment. But behaviors such as confinement become the acts that they are, including acts of punishment by confinement, according to the justifying aim(s) which suffuse(s) the behavior. For behaviors such as confinement are ambiguous; limiting another's freedom of movement may be constitutive of a number of different human acts, including quarantine, kidnapping, institutionalization, and imprisonment for crime. Same behavior, different acts. Each of the ends of punishment shapes privations imposed upon …

Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett

Nicole Stelle Garnett

No abstract provided.

The Order-Maintenance Agenda As Land Use Policy, Nicole Stelle Garnett

Nicole Stelle Garnett

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later …

Law Enforcement And The Separation Of Powers, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

Reflections On The Manifold Means Of Enforcing The Antitrust Laws: Too Much, Too Little, Or Just Right?, Joseph P. Bauer

Joseph P. Bauer

Lately, much attention has been given to the scope of the antitrust laws. This discussion has two overlapping components: (1) consideration of the substantive doctrines specifying the behavioral or structural changes that are or are not unlawful and the appropriate methodology; and (2) analysis for making those determinations with attention given to the appropriate vehicles for enforcing the antitrust laws. Some argue that the antitrust laws proscribe activities that are either pro-competitive or at worst benign. Further, they assert that the multiplicity of antitrust enforcers and enforcement devices has resulted in undue burdens, including excessive cost, time delay, and forestalling …

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

The Legitimacy Of Crimmigration Law, Juliet P. Stumpf

Juliet P Stumpf

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

La Doctrina Y La Evaluación De Tendencias En La Aplicación De La Normativa "Antitrust" (Doctrine And Evaluation Of Trends In Antitrust Law Enforcement), Jesús A. Soto

Jesús Alfonso Soto Pineda

El presente texto expone de forma unificada, los argumentos recurrentes que han sido elegidos por parte de la doctrina interesada en estructurar un enforcement efectivo de las normas antitrust comunitarias, para delimitar las bondades e inconvenientes que perciben en las dos vías de aplicación de las normas de libre competencia en la Unión Europea. Delimitando igualmente la defensa de un enforcement colectivo que compenetre el nivel de disuasión de ambos prototipos, favorezca la unificación de las determinaciones que les ponen en marcha y acople correctamente las diversas vicisitudes a las que se deben hacer frente en el tránsito de cada …

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Martin A. Schwartz

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman

Mary N. Bowman

Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny

By Mary Nicol Bowman

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate …

Incarceration American-Style, Sharon Dolovich

Sharon Dolovich

In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating—that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of …

Cruelty, Prison Conditions, And The Eighth Amendment, Sharon Dolovich

Sharon Dolovich

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not …

Two Models Of The Prison: Accidental Humanity And Hypermasculinity In The L.A. County Jail, Sharon Dolovich

Sharon Dolovich

This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County’s Men’s Central Jail. This unit, known as K6G, has an inmate culture that contrasts dramatically with that of the Jail’s general population (GP) units. Most notably, whereas life in the Jail’s GP is governed by rules created and violently enforced by powerful inmate gangs, K6G is wholly free of gang politics and the threat of violence gang control brings. In addition, unlike residents of GP, who must take care in most instances to perform a hypermasculine identity …

Exclusion And Control In The Carceral State, Sharon Dolovich

Sharon Dolovich

Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse …

Teaching Prison Law, Sharon Dolovich

Sharon Dolovich

To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law …

Punishment And Rights, Benjamin L. Apt

Benjamin L. Apt

Prevalent theories of criminal punishment lack a rationale for the precise duration and nature of state-ordered criminal punishment. In practice, too, criminal penalization suffers from inadequate evidence of punitive efficacy. These deficiencies, in theory and in fact, would not be so grave were the state to enjoy unfettered power over the disposition of criminal penalties. However, in societies that recognize legal rights, criminal punishments must be consistent with rights. Efficacy, even where demonstrable, does not suffice as a legal justification for punishment. This article analyzes the source of rights and how they function as primary rules in a legal system. …

Slavery And Information, Giuseppe Dari-Mattiacci

Giuseppe Dari-Mattiacci

This article shows how asymmetric information shaped slavery by determining the likelihood of manumission. A theoretical model explains the need to offer positive incentive to slaves working in occupations characterized by a high degree of asymmetric information. As a result, masters freed (and, more generally, rewarded) slaves who performed well. The model’s implications are then tested against the available evidence: both in Rome and in the Atlantic world, slaves with high-asymmetric-information tasks had greater chances of manumission. The analysis also sheds light on the master’s choices of carrots versus sticks and of labor versus slavery.

The Rise Of Carrots And The Decline Of Sticks, Giuseppe Dari-Mattiacci, Gerrit De Geest

Giuseppe Dari-Mattiacci

There is a remarkable tendency in modern legal systems to increasingly use carrots. This trend is not limited to legal systems but can also be observed in, for instance, parenting styles, social control mechanisms, and even law schools’ teaching methods. Yet, at first glance, sticks appear to be a more efficient means of inducing people to comply with legal rules or social norms because they are not meant to be applied (thus minimizing transaction costs and risks) and may cause fewer unintended distributional distortions. So how can we justify the widespread use of carrots?

This Article shows that carrots can …

Interpersonal Crimes: A Critical Study Of Systematic Bias Against Men, Sukdeo Ingale

Sukdeo Ingale

No abstract provided.

Foreword: A Global Perspective On Sentencing Reforms, Oren Gazal-Ayal

Oren Gazal-Ayal

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics. The …

Do Sentencing Guidelines Increase Prosecutorial Power? An Empirical Study, Oren Gazal-Ayal, Hagit Turjeman, Gideon Fishman

Oren Gazal-Ayal

Traditionally, judges have had tremendous flexibility in sentencing. Offering judges maximum discretion in the sentencing process allows them to consider not only an offender’s criminal history and the severity of the crime committed, but also the complex web of mitigating and aggravating factors present in each case and additional qualitative factors, such as a defendant’s testimony or selfpresentation in a courtroom. When judges are empowered with more discretion, however, there is heightened potential for inter-judge variability in sentencing. In order to reduce sentencing disparities caused by individual sentencers, several countries and jurisdictions, most notably in the United States, have enacted …

Breaking The Theft-Chain-Cycle: Property Marking As A Defensive Tool, William J. Bailey, David J. Brooks

Bill Bailey

The theft of property and its associated impact effects many parts of society. For example, a considerable amount of resources are expended in trying to reduce property theft, as such crime engenders both a financial and emotional impact (Grabosky, 1995, p. 1) on those involved. Factors such as fear of crime, increased insurance premiums and victimization are all outcomes of property crime. Much of the past research has focused on the mitigation of such crimes, collectively termed as ‘crime prevention’. Crime prevention are “any actions designed to reduce the actual level of crime and/or the perceived crime” (S.P. Lab, 2010, …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Stephen E Henderson

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …