Law Commons^™

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Retrying The Acquitted In England, Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David Rudstein

David S Rudstein

No abstract provided.

When Does Restitution Become Retribution?, Melanie M. Reid, Curtis L. Collier

Melanie M. Reid

A defendant, charged with knowingly possessing material that contains images of child pornography which has been transported in interstate commerce by means of a computer, in violation 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), needs to be aware that he may be hit with a large restitution order at the time of his sentencing. At sentencing, the court not only sentences the defendant to a term of imprisonment, supervised release, and assessment, but also orders an amount of restitution to be paid to the identified victims of the child pornography. This restitution order must comply with 18 U.S.C. § 2259 which …

Secrets Behind Secrets: Disclosure Of Classified Information Before And During Trial And Why Cipa Should Be Revamped, Melanie M. Reid

Melanie M. Reid

During the thirty years since its passage, CIPA has been utilized in hundreds (if not thousands) of criminal cases and used more frequently now than ever imagined in 1980. Yet, few prosecutors and defense counsel are familiar with CIPA and how to handle classified information when it is presented during the prosecution of a criminal case. CIPA has been misunderstood and misapplied by some judges because these rules only provide a framework for procedures on how to handle classified information when it is introduced during a criminal case. CIPA was not designed to establish a clear guideline on how judges …

Jury 2.0, Caren Myers Morrison

Caren Myers Morrison

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This article is the first to focus legal discourse …

Jury 2.0, Caren Myers Morrison

Caren Myers Morrison

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling a defendant’s name during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This article is the first to focus legal discourse …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish is inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

International Law Colloquia, Spring 2006 Series, Roger Alford, Laura Dickinson, Mark Drumbl, Karen Knop, Diane Orentlicher, Brad Roth, Edward Swaine

Diane Orentlicher

Spring 2006 Presenters: February 10: Laura A. Dickinson (University of Connecticut School of Law), Democracy and Trust February 17: Mark A. Drumbl (Washington and Lee University School of Law), Atrocity and Punishment February 24: Karen Knop (University of Toronto Faculty of Law), Enemies and Outlaws: War and the Public/Private Citizen March 3: Brad R. Roth (Wayne State University Department of Political Science), State Sovereignty, International Legality, and Moral Disagreement April 7: Diane Orentlicher (American University Washington College of Law), Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles April 14: Roger P. Alford (Pepperdine University School of Law), Foreign Relations as …

Original Habeas Redux, Lee B. Kovarsky

Lee Kovarsky

In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

The International Criminal Court: Will It Succeed Or Fail? Determinative Factors And A Case Study On This Question, Thomas L. Thompson-Flores

Thomas L Thompson-Flores

This article addresses some of the challenges facing the International Criminal Court (ICC) in a condensed, but yet in-depth manner, and then applies them in a case study in order to answer the question of whether the ICC will ultimately fail or succeed.

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Model Criminal Jury Instructions For The District Courts Of The Third Circuit, Anne Poulin

Anne Poulin

No abstract provided.

“Just The Facts”: Detective Fiction In The Law School Curriculum, Robert Power

Robert C Power

No abstract provided.

The Grand Jury Legal Advisor: Resurrecting The Grand Jury's Shield, Thaddeus Hoffmeister

Thaddeus Hoffmeister

This article begins by discussing the prosecutor’s control over the grand jury process and whether that is necessarily a good or bad thing. After determining that it is indeed harmful to the criminal justice system, the article offers a possible remedy, the grand jury legal advisor (GJLA). Currently, both the state of Hawaii and the military use the GJLA. The article concludes by demonstrating that the advantages of implementing the GJLA greatly outweigh the disadvantages. In fact, the GJLA actually benefits the prosecutor. As part of the research for this article, the author has conducted an independent survey with former …

Originalism & Early Civil Search Statutes: Searches & The Misunderstood History Of Suspicion & Probable Cause, Fabio Arcila

Fabio Arcila Jr.

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the “conventional account,” has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the …

Criminal Procedure: The Investigative Process, David Rudstein

David S Rudstein

No abstract provided.

Retribution's Role, John Bronsteen

John Bronsteen

For many decades, criminal law scholars have directed their efforts at finding a philosophical justification of criminal punishment. This endeavor has created a split between retributivists (who deem punishment justified by the wrongdoing of the offender) and utilitarians (who deem it justified by its good consequences such as deterring future crime). This Article suggests that the dialogue between retributivists and utilitarians would profit from a change in the way they frame the central question of what justifies punishment. Specifically, the question could be divided as follows. First, why does the state have a right to punish? And second, why does …

Aedpa's (Imaginary) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

Aedpa's (Imaginery) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

Aedpa's (Imaginary) Purposes, Lee B. Kovarsky

Lee Kovarsky

Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …

Coporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This article address a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, represented primarily by the American Bar Association, the Association of Corporate Counsel, and the National Association of Criminal Defense Lawyers, on the one side, and the United States Department of Justice, on the other. The fight is over federal prosecutors’ escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department views privilege waiver as a legitimate and very important tool in its post-Enron battle …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Criminal Procedure: The Investigatory Process, David Rudstein

David S Rudstein

No abstract provided.

Get The Facts, Jack! Empirical Research And The Changing Constitutional Landscape Of Consent Searches, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.

A Round Peg In A Square Hole: Federal Forfeiture Of State Professional Licenses, Wesley Oliver

Wesley M Oliver

No abstract provided.

With An Evil Eye And An Unequal Hand: Pretextual Stops And Doctrinal Remedies To Racial Profiling, Wesley Oliver

Wesley M Oliver

No abstract provided.