Law Commons^™

Prosecutorial Control In Canada: The Definition Of Attorney-General In Section 2 Of The Criminal Code, Camille Cameron

Articles, Book Chapters, & Popular Press

In 1969, as a result of the redefinition of Attorney-General” in section 2 of the Criminal Code, the federal Attorney-General assumed an increased role in criminal prosecutions within the provinces. This new role has resulted in various challenges to the constitutional validity of the amendment — the provinces claim that the new definition is an encroachment upon the administration of justice power given to them by section 92(14) of the British North America Act while the federal government relies on its criminal law power to justify the amendment. The author examines the 1969 amendment in light of sections 91(27) and …

Authority And Consent, Joseph Raz

Faculty Scholarship

My starting point is the assumption that there is no general obligation to obey the law, not even a prima facie obligation and not even in a just society. This assumption is perhaps becoming more popular. In recent years it has been defended by several writers. There is more that needs to be said in its support, but I will not attempt to do so here. Instead, I will reflect on a problem posed by accepting it, a problem concerning the relations between an individual citizen and the state. It is common to think that the state has authority over …

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …

Final Report On The Establishment Of An International Criminal Court For The Implementation Of The Apartheid Convention And Other Relevant International Instruments, Daniel H. Derby, M. Cherif Bassiouni

Scholarly Works

No abstract provided.

Effective Assistance Of Counsel: In Quest Of A Uniform Standard Of Review, Theresa L. Springmann, John Eric Smithburn

Journal Articles

Nearly a decade ago, the United States Supreme Court in McMann v. Richardson held that the sixth amendment right to counsel was a right to effective assistance of counsel. The Court declared that criminal defense attorneys must act "within the range of competence demanded of attorneys in criminal cases, '' and that trial judges must "strive ... to maintain proper standards of performance by attorneys ... in their courts." The Court has not elaborated, however, on what conduct the right to effective counsel requires of both defense counsel and the trial judge, or the procedure by which appellate review can …

Faces Without Features: The Surface Validity Of Criminal Inferences, Peter Lushing

Articles

This article will offer nonempirical grounds to show that instructed inferences operate as the dissenters believe, at least when the instruction does not explicitly refer to the evidence at trial, but to occurrences in general.

Conjugal Violence: The Law Of Force And The Force Of Law , Maria Marcus

Faculty Scholarship

The Article concludes that neither the impartial mission of the rule of law nor the neatly tooled goal of individual justice has been served by the governmental response to conjugal violence, and suggests the elements from which a valid approach may be constructed.

Havens, Jenkins, And Salvucci, And The Defendant's "Right" To Testify, Craig M. Bradley

Articles by Maurer Faculty

Three recent Supreme Court opinions that enlarge the scope of permissible impeachment may substantially influence the criminal defendant's decision whether to take the stand. In this article, Professor Bradley evaluates the current status of the defendant's "right" to testify, assesses the impact of these cases on that right, and offers cogent advice on effective strategies for practitioners.

"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.

Faculty Scholarship

In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"

"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."

"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."

"So talk to him," the prosecutor said. "Find out where he stands, and call me."

* * *

"Look," the prosecutor said, "you know I can't …

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Faculty Scholarship

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
—Edward, First Baron Thurlow 1731-1806

The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, …

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …

Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and …

The Federal Rules Of Evidence: Six Years After, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence have been in effect since 1975. Six years of experience is not much time in which to assess such a complex and important body of law. Nevertheless, there is now some "evidence" of the impact of the Federal Rules on the various states and circuits.

The Rules do seem to have proved successful enough to stimulate widespread imitation. Approximately half the states in the United States have or will very shortly have evidence codes patterned substantially on the Rules, even down to their numbers. Many of the remaining states (e.g., Iowa, Illinois, and Pennsylvania) have …