Law Commons^™

The Stockley Verdict: An Explainer, Chad Flanders

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The purpose o f this document is to help explain some o f the existing Missouri law that Judge Wilson used in his opinion. It does not take a side on the opinion itself. At the end o f the day, the decision Judge Wilson made was based on his call on various disputed factual questions. The law was not, for the most part, at issue. I attempt only to describe the legal framework within with Judge Wilson decided the case; not to support or to criticize his verdict. Each person will ultimately have to make his or her own …

The Violent Bear It Away: Emmett Till & The Modernization Of Law Enforcement In Mississippi, Anders Walker

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Few racially motivated crimes have left a more lasting imprint on American memory than the death of Emmett Till. Yet, even as Till's murder in Mississippi in 1955 has come to be remembered as a catalyst for the civil rights movement, it contributed to something else as well. Precisely because it came on the heels of the Supreme Court's 1954 ruling in Brown v. Board of Education, Till's death convinced Mississippi Governor James P. Coleman that certain aspects of the state's handling of racial matters had to change. Afraid that popular outrage over racial violence might encourage federal intervention in …

Place Mattters (Most): An Empirical Study Of Prosecutorial Decision-Making In Death-Eligible Cases, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

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This article investigates prosecutorial discretion in death penalty prosecution in Missouri. Based upon an empirical analysis of all intentional-homicide cases from 1997-2001, this article concludes that Missouri law gives prosecutors unconstitutionally broad discretion in charging these cases. This article also finds that prosecutors exercise this broad discretion differently, leading to geographic and racial disparities in sentencing, and concludes with proposals for statutory reform.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

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In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of …

The Anti-Case Method: Herbert Wechsler And The Political History Of The Criminal Law Course, Anders Walker

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This article is the first to recover the dramatic transformation in criminal law teaching away from the case method and towards a more open-ended philosophical approach in the 1930s. It makes three contributions. One, it shows how Columbia Law Professor Herbert Wechsler revolutionized the teaching of criminal law by de-emphasizing cases and including a variety of non-case related material in his 1940 text Criminal Law and Its Administration. Two, it reveals that at least part of Wechsler's intention behind transforming criminal law teaching was to undermine Langdell's case method, which he blamed for producing a "closed-system" view of the law …

The Precarious Situation Of Human Rights In The United States In Normal Times And After September 11, 2001 (La Situación Precaria De Los Derechos Humanos En Estados Unidos En Tiempos Normales Y Después Del 11 De Septiembre De 2001) (Spanish), Stephen C. Thaman

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The paper criticizes the impact of U. S. American criminal law and procedure on the human rights of U. S. citizens in normal times and the changes that have occurred since the terrorist attacks of September 11, 2001. It deals with racial profiling, the death penalty, Draconian prison sentences in normal times, and the use of unlimited detention, torture and expanded powers of wiretapping and evidence gathering since the attacks of 9-11.

Note: downloadable document is in Spanish

Truth Or Legality: The Limits On The Laundering Of Illegally Gathered Evidence In A State Under The Rule Of Law (Verdad O Legalidad: Los Límites Del Blanqueo De Pruebas Ilegalmente Recogidas En Un Estado De Derecho) (Spanish), Stephen C. Thaman

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This paper discusses the tension between the constitutional rights to silence and to privacy and the important goal of criminal procedure to ascertain the truth. It traces exclusionary rules from the inquisitorial rules relating to nullities, to modern constitutional, statutory and jurisprudential rules for excluding illegally gathered evidence.

Note: downloadable document is in Spanish

American Oresteia: Herbert Wechsler, The Model Penal Code, And The Uses Of Revenge, Anders Walker

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The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims." Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution. Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC). This article recovers that role by focusing on the retributive views of its first …