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Articles 1 - 30 of 180
Full-Text Articles in Law
Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe
Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe
San Diego Law Review
In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are …
Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan
Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan
San Diego Law Review
In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense. It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in Part II. …
Too Big To Obey: Why Bp Should Be Debarred, Rena Steinzor, Anne Havemann
Too Big To Obey: Why Bp Should Be Debarred, Rena Steinzor, Anne Havemann
William & Mary Environmental Law and Policy Review
No abstract provided.
Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin
Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin
San Diego Law Review
This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.
More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …
Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak
Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak
San Diego Law Review
Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully …
A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen
A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen
San Diego Law Review
This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.
In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it …
Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy
San Diego Law Review
How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.
Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …
Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua Fershee
Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua Fershee
William & Mary Environmental Law and Policy Review
No abstract provided.
Criminal Law, Franklin J. Hogue, Laura D. Hogue
Criminal Law, Franklin J. Hogue, Laura D. Hogue
Mercer Law Review
We have culled through the most important criminal cases of this reporting period' and selected those that resulted in changes to criminal case law that will likely have an effect upon the way prosecutors and defense attorneys approach criminal cases in Georgia.
Criminal Law And Procedure, Virginia B. Theisen
Criminal Law And Procedure, Virginia B. Theisen
University of Richmond Law Review
Once more, the past year yielded a wealth of developments in the area of criminal law and procedure. The author has endeavored to cull the most significant decisions and legislative enactments, with an eye toward the "takeaway" from a case rather than a discussion of settled principles.
Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein
Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein
San Diego International Law Journal
The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …
Constitutional Law—It Wasn’T Me! Zinger V. State And Arkansas’S Unconstitutional Approach To Third-Party Exculpatory Evidence. Zinger V. State, 313 Ark. 70, 852 S.W.2d 320 (1993)., Bourgon B. Reynolds
Constitutional Law—It Wasn’T Me! Zinger V. State And Arkansas’S Unconstitutional Approach To Third-Party Exculpatory Evidence. Zinger V. State, 313 Ark. 70, 852 S.W.2d 320 (1993)., Bourgon B. Reynolds
University of Arkansas at Little Rock Law Review
No abstract provided.
Setting The Record Straight On State V. John Ingram Purtle: Reflections On The Great Dissenter, Samuel A. Perroni
Setting The Record Straight On State V. John Ingram Purtle: Reflections On The Great Dissenter, Samuel A. Perroni
University of Arkansas at Little Rock Law Review
No abstract provided.
Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett
Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett
Indiana Law Journal
No abstract provided.
Prohibiting Sex Purchasing And Ending Trafficking: The Swedish Prostitution Law, Max Waltman
Prohibiting Sex Purchasing And Ending Trafficking: The Swedish Prostitution Law, Max Waltman
Michigan Journal of International Law
At the symposium on "Successes and Failures in International Human Trafficking Law" at the University of Michigan Law School in February 2011, I addressed the topic of international sex trafficking law, particularly the Swedish law that prohibits the purchase of sex while simultaneously decriminalizing the prostituted person. Being asked to address trafficking, I was surprised by the name given to my panel: "Kidnapped at Home, Sold Abroad: Sex Trafficking in the International Community." This surprise was owing to the fact that in the most current international instrument defining trafficking, the United Nation's so-called Palermo Protocol, nowhere is the term "kidnapping" …
Conceptions Of Borrowers And Lenders In The Canadian Payday Loan Regulatory Process: The Evidence From Manitoba And Nova Scotia, Freya Kodar
Dalhousie Law Journal
Commentators characterize thinking aboutpaydayloans as falling into two general perspectives. In one theory payday loans respond to market demand and are a sensible choice for a consumer with limited assets, credit, or other support when an unexpected financial need arises. The opposing theory holds that the loans are usurious and exploit vulnerable low-income borrowers. In 2007, amendments were passed exempting payday loans from the application of the criminal interest rate provisions of the Criminal Code if they were made by companies licensed by a province with a regulatory scheme. The author examines how federal and provincial lawmakers and administrative decision-makers …
Breaking Free From Insanity: A White-Collar Crime Approach To Drug War Policy, Brian Harrison
Breaking Free From Insanity: A White-Collar Crime Approach To Drug War Policy, Brian Harrison
University of the District of Columbia Law Review
Preventing crime should be a top priority for law enforcement. A victim of crime would readily agree that never having been a victim at all is preferable to suffering at the hands of a criminal. Even if the criminal is later caught and punished, a victim remains a victim. Despite this simple truth, current drug policy does not place a top priority preventing the laundering of drug-tainted money. As a result, the United States remains a victim in the War on Drugs.' As will be discussed, the crime of money laundering can be prevented in many instances by prosecuting banks …
Driving Into Unreasonableness: The Driveway, The Curtilage, And Reasonable Expectations Of Privacy, Vanessa Rownaghi
Driving Into Unreasonableness: The Driveway, The Curtilage, And Reasonable Expectations Of Privacy, Vanessa Rownaghi
American University Journal of Gender, Social Policy & the Law
No abstract provided.
When We Lie To The Government, It's A Crime, But When The Government Lies To Us, It's … Constitutional?, Harvey Gilmore
When We Lie To The Government, It's A Crime, But When The Government Lies To Us, It's … Constitutional?, Harvey Gilmore
Buffalo Public Interest Law Journal
No abstract provided.
The Solitary Confinement Of Juveniles In Adult Jails And Prisons: A Cruel And Unusual Punishment?, Anthony Giannetti
The Solitary Confinement Of Juveniles In Adult Jails And Prisons: A Cruel And Unusual Punishment?, Anthony Giannetti
Buffalo Public Interest Law Journal
No abstract provided.
Prisoner-On-Prisoner Sexual Harassment: The Prevalence, Severity, And Lack Of Legal Recourse, Jayla Burton
Prisoner-On-Prisoner Sexual Harassment: The Prevalence, Severity, And Lack Of Legal Recourse, Jayla Burton
Buffalo Journal of Gender, Law & Social Policy
No abstract provided.
Restorative Justice In Indonesia: Traditional Value, Eva Achjani Zulfa
Restorative Justice In Indonesia: Traditional Value, Eva Achjani Zulfa
Indonesia Law Review
“Restorative Justice” is a model approach which emerged in the 1960s in an effort to solve criminal cases. Unlike the approach used in conventional criminal justice system, this approach focuses on the direct participation of perpetrators, victims and society in the settlement process. This theory of the approach is still debated, but the view is in fact growing and it exercises a lot of influence on legal policies and practices in several countries. The UN through its basic principles considers the approach of restorative justice as the approach which could be used in the rational criminal justice system. Restorative justice …
State Capture: Is It A Crime? How The World Perceived It, Lily Evelina Sitorus
State Capture: Is It A Crime? How The World Perceived It, Lily Evelina Sitorus
Indonesia Law Review
State capture has emerged as a global threat in several countries. The definitions vary from the act of rent-seeking to corruption. Russia, Ukraine, and some countries in Central Asia are several areas where state capture was first observed. Indonesia is not immune from the threat. Several misconducts in the country had already been labeled as state capture. There are some distinctions between state capture and corruption, whereas in a few countries both are considered as the same. Strategies for combating corruption usually involve reducing state capture.
The Agency Defense: Can The Legislature Help?, Yuval Simchi-Levi
The Agency Defense: Can The Legislature Help?, Yuval Simchi-Levi
Buffalo Law Review
No abstract provided.
Do Sexting Prosecutions Violate Teenagers' Constitutional Rights?, Joanne Sweeny
Do Sexting Prosecutions Violate Teenagers' Constitutional Rights?, Joanne Sweeny
San Diego Law Review
The media has recently been highlighting a rash of prosecutions of teenagers who engage in "sexting"--sending nude or sexually explicit images of themselves or their peers--under child pornography laws. These prosecutions have led to mass criticism for threatening teens with long prison terms and registration as sex offenders for activities that are perceived to be relatively innocent. Many, if not most, of these sexting teens are legally permitted to engage in sexual activities through their states' statutory rape laws, which leads to an absurd situation in which teens are permitted to engage in sex but not photograph it. This mismatch …
Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman
Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman
Pace Law Review
Probably the most damaging external impediment to a lawyer’s ability to render effective assistance to a client may come from the interference by the trial judge in counsel’s advocacy. A judge supervises the conduct of a trial but he is more than a mere umpire or moderator. A trial judge, by his rulings, questions, and comments, has an enormous capacity to affect the merits of a party’s case and thereby influence the verdict of the jury. To be sure, the basic requirement of a trial judge, both legally and ethically, is to be impartial in demeanor as well as in …
The Boundaries Of Privacy Harm, M. Ryan Calo
The Boundaries Of Privacy Harm, M. Ryan Calo
Indiana Law Journal
Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.
The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …
Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer
Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer
Indiana Law Journal
Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first degree, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.
Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …
Retail Rebellion And The Second Amendment, Darrell A. H. Miller
Retail Rebellion And The Second Amendment, Darrell A. H. Miller
Indiana Law Journal
When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for selfdefense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals―not just communities―have the right to protect themselves from public violence. Individuals―not just militias―have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, …
The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt
The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt
Indiana Law Journal
This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …