Law Commons^™

'Fruits Of The Poisonous Tree' In Comparative Law, Stephen C. Thaman

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This article gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence, and explores how these rules are interpreted when excluding the derivative “fruits” of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one’s home and confidential communications. It shows, whether a country begins with a seemingly airtight categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely triumphed over constitutional rights. As a …

The One State Solution To Teaching Criminal Law, Or Leaving The Common Law And The Mpc Behind, Chad Flanders

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How should criminal law be taught to first-year law students? Professors preparing their classes for the first time, and even veterans of many semesters of criminal law, find themselves facing a dilemma. On the one hand, the common law is no longer good - law in nearly every state; it has been superseded by statute. Even states that leave a large role for the common law usually have a combination of common law and statutory law or strongly limit the scope of the common law. On the other hand, there is no uniform code that actually exists as law in …

Retribution And Reform, Chad Flanders

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What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we …

What Is Changing? 'The Future Is Not What It Used To Be', Michael A. Wolff

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The editors of the Federal Sentencing Reporter asked a number of experts on sentencing in 2008 to write short pieces on what they expected after a "change" election. In 2010 the editors asked: what changed? Judge Wolff’s response, which concentrates on the states, is that the states’ dire financial conditions and the effect of the California marijuana legalization proposition, which gathered serious support but failed, have affected the public’s perceptions of sentencing policy. The public and their representatives are trying more to be smart on crime rather than tough on crime, and the public is becoming increasingly skeptical of the …

A Typology Of Consensual Criminal Procedures: An Historical And Comparative Perspective On The Theory And Practice Of Avoiding The Full Trial, Stephen C. Thaman

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In the words of Clifford Geertz, this chapter engages in “an exercise of intercultural translation” in order to understand the reality of plea bargaining and other forms of consensual resolution of criminal cases. It provides a history of consensual and alternative forms of criminal procedure around the world. It also provides a comprehensive discussion on alternatives to a full trial in modern penal systems and issues that arise with those alternatives.

Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders

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In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. …

Accrediting The Accreditors: A New Paradigm For Correctional Oversight, Lynn S. Branham

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Correctional accreditation processes can be revamped to bring more transparency and accountability into the operation of correctional facilities and to help ensure that they comport with sound correctional practices, legal requirements, and basic human-rights precepts. Becoming accredited is now largely optional, and correctional accreditation processes are fee-based. Consequently, correctional accrediting entities are vulnerable to pressures to water down accreditation standards and make accreditation procedures more lax. The federal government should therefore adopt two requirements. First, prisons, jails, and other correctional facilities should have to be accredited by a certified accrediting entity in order to be eligible to receive federal funds. …

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

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In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola's Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks.

Can Retributivism Be Progressive? A Reply To Professor Gray And Jonathan Huber, Chad Flanders

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Professor David Gray and Jonathan Huber have done a great service in their Response to my Article, “Retribution and Reform.” They have helped me to see the wrong turns in my argument and the areas in which my argument needs to be clarified and amplified. In this brief Reply, I attempt to respond to some of their concerns.