Law Commons^™

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the crime. This instruction betrays the …

Community Lawyering In The Juvenile Cellblock: Creative Uses Of Legal Problem Solving To Reconcile Competing Narratives On Prosecutorial Abuse, Juvenile Criminality, And Public Safety, David Dominguez

David Dominguez

Community Lawyering in the Juvenile Cellblock: Creative Uses of Legal Problem Solving to Reconcile Competing Narratives on Prosecutorial Abuse, Juvenile Criminality, and Public Safety challenges systemic deficiencies in juvenile detention practices from the perspective of Community Lawyering. Community Lawyering in these circumstances achieves two goals. First, it offers legal assistance to the incarcerated child in order to vindicate legal interests protected by the United States Constitution and state statute. Secondly, through creative use of law students’ problem solving skills, Community Lawyering works with others in the community to realize the vision of a collaborative system of juvenile justice, one that …

Discretionary Persistent Felony Offender Sentencing In New York: Can It Survive Apprendi ?, Joseph E. Fahey

Joseph E Fahey

This article examines the Discretionary Persistent Felony Offender sentencing provision contained in New York Penal law section 70.10 and its vitality in the wake of Apprendi v. New Jersey.

It examines the disparity in the controlling New York Court of Appeals cases and the holdings in Apprendi and its progeny.

It also discusses ways in which the sentencing court can apply the sentnecing statute and avoid Apprendi pitfalls.

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Point Of Order: An Insider's Guide To Congressional Investigations, Don R. Berthiaume, Raymond Shepherd

Don R Berthiaume

This CONTEMPORARY LEGAL NOTE provides some insight into the different phases of a congressional investigation; the critical differences between criminal proceedings and congressional investigations; the legal devices committees and subcommittees utilize in their investigations; and the basic rules of congressional hearings.

The United States Supreme Court & The Second Amendment, Stefan B. Tahmassebi

Nikki J Benedict

U.S. SUPREME COURT JURISPRUDENCE: Some gun control proponents argue that the Supreme Court has held the Second Amendment to be a "collective right". Firearms rights proponents assert that the Court has indeed held that the Amendment protects an individual right. This presentation will provide an in-depth discussion of relevant U.S. Supreme Court Jurisprudence.

Extralegal Crimes, Extralegal Punishments: Justice On The Antebellum Plantation, Gerald J. Pierson

Gerald J Pierson

Most plantation slaves in the American South prior to the Civil War never encountered the ordinary, legally established criminal justice system in their communities. Instead, an ad hoc justice system, unique to each plantation and controlled by the slaves’ master and enforced by the master, overseer, and driver, constituted the mechanism of control. Each plantation was, in effect, a common law jurisdiction within the larger “federal” system composed of the ordinary Southern state legal systems. This justice system, extralegal and profoundly authoritarian, possessed the accouterments of any criminal justice system: rule-making authority, the establishment and “publishing” of statutory crimes, gradation …

Megan’S Law And The Misconception Of Sex Offender Recidivism, Debra J. Patkin

Debra J Patkin

No abstract provided.

Military Commissions In America? Domestic Liberty Implications Of The Military Commissions Act Of 2006, Sean C. Riordan

Sean C Riordan

The Military Commissions Act of 2006 (MCA) has potentially far-reaching negative implications for the liberties of aliens in the United States. This article examines the new military commissions as a parallel scheme for the preventative incapacitation of alleged alien terrorists and terrorist supporters. It finds that a broad group of aliens in the United States perceived to threaten national security could be subject to military commission jurisdiction and deprived of adequate protections against indefinite detention and unjust conviction. This finding is illustrated through two hypothetical domestic military commission cases taken from recent immigration and criminal decisions. In light of the …

The T-Rex Without Teeth: Evolving Strickland V. Washington And The Test For Ineffective Assistance Of Counsel, Robert R. Rigg

Robert R. Rigg

When the United States Supreme Court decided Strickland v. Washington it created a doctrine of immense importance but having little impact. This has changed in the last several years as the Court used America Bar Association standards to review counsels performance. This article explores Strickland and three cases decided by the Court that will change how courts apply the Strickland test and how lawyers should alter their approach to representation.

Undermining Individual And Collective Citizenship: The Impact Of Felon Exclusion Laws On The African-American Community, S. David Mitchell

S. David Mitchell

Felon exclusion laws are jurisdiction-specific, post-conviction statutory restrictions that prohibit convicted felons from exercising a host of legal rights, most notably the right to vote. The professed intent of these laws is to punish convicted felons equally without regard for the demographic characteristics of each individual, including race, class, or gender. Felon exclusion laws, however, have a disproportionate impact on African-American males and, by extension, on the residential communities from which many convicted felons come. Thus, felon exclusion laws not only relegate African-American convicted felons to a position of second-class citizenship, but the laws also diminish the collective citizenship of …

If You Could Read My Mind: Implications Of Neurological Evidence For Twenty-First Century Criminal Jurisprudence, John G. New

John G. New

The advent of new technologies has permitted cognitive neuroscientists to explore the neural mechanisms underlying deceptive behaviors. Lawyers and law enforcement entities have shown great interest in exploring the legal consequences of employing such technologies; indeed such interest extends back to the days of phrenology and the advent of polygraphy. This article recounts current advances in the development of “truth telling” technologies, particularly functional magnetic resonance imaging (fMRI) and Brain Fingerprinting and recent attempts to introduce the latter into court as scientific evidence. The second part of the article explores the challenges to constitutional jurisprudence, especially to the Fifth and …

“Exporting U.S. Anti-Terrorism Legislation And Policies To The International Law Arena, A Comparative Study: The Effect On Other Countries' Legal Systems”, Olga Kallergi

Olga Kallergi

Abstract

The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and belies of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place not that we are all fighting the same enemy? Did we learn from our …

"Drug Treatment Courts In The 21st Century: Improving The Criminal Justice System's Response To Drug Offenses", Peggy Fulton Hora, Theodore Stalcup

Peggy Hora

The article demonstrates that the traditional criminal justice system’s response to drug offenses – arrest, trial and incarceration and re-arrest, re-trial and re-incarceration of 70% of offenders within three years – wastes vast economic and human resources. Drug treatment courts, on the other hand, have proven to be strong alternatives to incarceration as well as effective mechanisms for dealing with America’s drug problem. The article addresses criticism of drug treatment courts, including resistance to the disease model of addiction, disputes over efficacy of treatment, legal issues related to purported coercion of treatment, concern over unbridled judicial discretion and ethical issues …

California's Three Tiered Approach To Temper The Injustice Of The Unlawful Act Involuntary Manslaughter Rule, George L. Mertens

George L Mertens

This article addresses California’s “Unlawful Act Involuntary Manslaughter Rule” which is also referred to as the “misdemeanor manslaughter rule.” On its face, like the analogous felony-murder rule, this law can be applied in a brutally unjust manner. Indeed, this law is worse than the felony-murder rule in that the statute does not enumerate specific predicate acts. On its face, the law could apply to any violation of a misdemeanor or infraction which results in death. Judicially, the law had undergone significant limitations over time with the most significant coming in the last decade.

This article is timely and important for …

Do Rules Of Evidence Apply (Only) In The Courtroom? Deceptive Interrogations In The United States And Germany, Jacqueline E. Ross

Jacqueline E Ross

Scholars who compare common law and civil law countries have long argued that civil law legal systems like Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. The complex and restrictive nature of American evidentiary rules is said to be an artifact of the adversarial process and lay juries, which the legal system does not trust to evaluate evidence dispassionately. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision-makers.

My essay challenges this …

Deciding Death, Corinna Lain

Corinna Lain

When the Supreme Court decides death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court’s Eighth Amendment “evolving standards of decency” doctrine, but a close look at the Court’s decisions in this area shows that their criticism misses the mark. Doctrine does not matter one whit in the Supreme Court’s “evolving standards” cases, but where majoritarian doctrine does not constrain the Court’s decision-making, other majoritarian forces do. To make this point, I first examine three of the Supreme Court’s most prominent (and in two cases, most recent) “evolving standards” decisions, along with the decisions …

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

William C Thompson

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 …

Blowing The Whistle On Whistleblower Protection: A Tale Of Reform Versus Power, Mary K. Ramirez

mary k ramirez

Abstract: Blowing the Whistle on Whistleblower Protection: A Tale of Reform Versus Power, by Mary Kreiner Ramirez Congress is currently considering expanding whistleblower protection, which the President has vowed to veto. With every wave of scandals or with each new political movement, Congress seems to include whistleblower protection. Yet, this article shows that after nearly 150 years of piecemeal evolution, whistleblowing remains fraught with risk. The protections extended to whistleblowers are a porous net rather than a secure blanket. Indeed, one should only enter these dangerous waters with the advice of counsel. The recent extension by Congress of whistleblower protection …

White Collar Crime And Punishment, Kelly Strader

Kelly Strader

WHITE COLLAR CRIME AND PUNISHMENT Reflections on Michael, Martha, and Milberg Weiss J. Kelly Strader ABSTRACT We are deeply conflicted about white collar crime and punishment. This conflict is largely born of the government’s use of novel, “gray-area” legal theories in many high profile white collar prosecutions. Such prosecutions undermine the integrity and expressive function of our system of white collar criminalization. These prosecutions also may violate the defendants’ right to fair notice of the possible crimes with which they may be charged. I argue for a new approach. First, in gray-area cases, we should rely upon civil and administrative …

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

Gregory E. Maggs

My Article is called: “Assessing the Legality of Counterterrorism Measures without Characterizing them as Law Enforcement or Military Action.” In this article, I develop three theses:

First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that …

Entrapment And Terrorism, Dru Stevenson

Dru Stevenson

The thesis of this article is that the unique nature of terrorist crime requires a tweaking of the entrapment rules. The entrapment defense is our legal system’s primary mechanism for regulating government sting operations. I argue that sting operations and surveillance are conceptually distinct (or rival) methods of law enforcement, which compete for resource allocation. If an enforcement agency favors one method, it shifts resources away from the other. To the extent that we dislike panoptic government surveillance, we can steer enforcement agencies away from it by encouraging targeted stings; and we can achieve this, in part, by adapting the …

The Revitalization Of Ake, Cara H. Drinan

Cara H. Drinan

Pursuant to the case of Ake v. Oklahoma, indigent capital defendants are entitled to a wide array of expert assistance at both the conviction and sentencing phases of trial. Historically, the Ake entitlement has been under-utilized for both structural and normative reasons. However, today Ake is in the process of being revitalized. Recent Supreme Court decisions and the revised American Bar Association (“ABA”) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases offer the hope that the theoretical entitlement of Ake will be fully realized. Moreover, if that occurs, one of two outcomes is likely to …

Private Criminal Justice, Ric Simmons

Ric Simmons

The past few decades have seen the rise of two very different alternatives to the traditional criminal justice system: private police and restorative justice programs. Each of these approaches represents a revolutionary paradigm shift as to how criminal justice is administered in this country—and yet each of these movements has been limited in its impact on the current criminal justice system. The privatization movement has been restricted to the law enforcement stage of the criminal justice system, while the restorative justice movement has been dependent upon state support. This Article argues that it is only a matter of time before …

Acknowledging Guilt: Forcing Self-Identification In Post-Conviction Dna Testing, Tonja Jacobi, Gwendolyn Carroll

Tonja Jacobi

Despite the enormous media attention given to the success of Innocence Projects in exonerating wrongfully convicted defendants in criminal cases through the use of post-conviction DNA testing, it is far more common for such tests to confirm petitioners’ guilt. Guilt-confirming DNA testing imposes enormous costs on the state, in terms of the financial cost of testing, prosecutors’ time in vetting petitions, and victim trauma. This Article develops an economic screening model that shows that the best regulatory response is to punish prisoners who seek post-conviction DNA testing – when those tests confirm guilt – with additional incarceration. This has the …

Delegating Discrimination: Why Discretionary Licensing Statutes Controlling Concealed Carry Weapons Permits Contravene The Rule Of Law, Robert J. Endorf

Robert J. Endorf Jr.

The most significant change in this nation's firearm regulation in almost fifty years is the majority of states adopting liberalized rules for the carrying of concealed firearms. The political debate surrounding theses new "shall issue" licensing laws has almost unanimously confused two distinct issues. The debate has centered on whether states should issue many licenses, or virtually no licenses; however, because many licensing statutes date back to the turn of the twentieth century and were originally passed for highly suspect motives, such as outright racism or xenophobia, the issue of how best to issue licenses has been buried under the …

What Hurricane Katrina Taught Me About Fair Cross-Section Claims, Robin E. Schulberg

Robin E. Schulberg

Among the aftereffects of Hurricane Katrina was depressed representation of African Americans on federal jury venires. The Federal Public Defender for the Eastern District of Louisiana challenged the venires under the Sixth Amendment right to a jury drawn from a fair cross-section of the community. These challenges lost but what stood out in the litigation process was the paucity of authority in our favor. This article attributes the lack of success that has plagued fair cross-section claims to the tendency of lower courts to conflate them with equal protection claims. While equal protection claims require proof of discriminatory intent, fair …

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Adam M. Gershowitz

Almost everyone agrees that indigent defense in America is under-funded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to “beyond all doubt” to convict indigent defendants. The …

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

Gregory E. Maggs

My Article is called: “Assessing the Legality of Counterterrorism Measures without Characterizing them as Law Enforcement or Military Action.” In this article, I develop three theses:

First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that …

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

John D. Castiglione

This article analyzes Samson v. California and Hudson v. Michigan, 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, the Court held that knock-and-announce violations do not carry a remedy of exclusion. Hudson not only rejected what every state and every federal court, save one, believed to be the proper remedy for knock-and-announce violations, but called into question the Supreme Court's continued support of a general Fourth Amendment exclusionary principle. Part One examines the Court's decision in Samson, tying it …