Law Commons^™

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

UF Law Faculty Publications

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

Humanitarian Assistance And The Private Security Debate: An International Humanitarian Law Perspective, Benjamin Perrin

All Faculty Publications

The changing nature of armed conflict has had a dramatic impact on the security risks facing humanitarian personnel. Historically, the safety of humanitarian aid delivery was secured through the consent of the relevant Parties to the conflict. However, non-international ethnically-motivated armed conflicts, failed and failing states, and insurgency-based warfare have fundamentally challenged the viability of this traditional security paradigm. In confronting today's complex security climate, humanitarian organizations are faced with a diverse menu of alternatives to enhance their security. The debate over armed protection that has sharply divided the humanitarian community is explored in this paper, including a critique of …

Searching For Law While Seeking Justice: The Difficulties Of Enforcing International Humanitarian Law In International Criminal Trials, Benjamin Perrin

All Faculty Publications

International criminal law finds itself at the confluence of public international law, international humanitarian law, human rights law and national criminal laws. Our understanding of the interrelationship between these sources of law has been hampered by the conventional wisdom that public international law doctrines applicable to disputes between states can be readily transposed to the international criminal prosecution of individuals. A detailed analysis of selected decisions of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda demonstrates that these tribunals could not simply rely on classical sources of public international law to resolve difficult …

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

All Faculty Publications

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with non-disclosure of one's HIV status, the author concludes that criminal law should …

Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan

All Faculty Scholarship

In January 2008, at the Association of American Law Schools' annual meeting, the Jurisprudence Section conducted a panel on "The Margins of Legal Personhood." The goal of this panel was to draw (or sever) connections between and among different "marginal" entities: the psychopath, the animal, and the embryo or fetus. As is perhaps immediately apparent, these entities are not marginalized in a political sense, but rather lie at the margins of our moral and legal communities. Prima facie, they may have some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must …

Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth

Book Chapters

Unlike many of the topics covered in this book, death penalty litigation involves a wide variety of empirical issues. The Eighth Amendment of the U.S. Constitution provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." But what is a "cruel and unusual punishment?" It could be a punishment that is morally unacceptable to the American people, like cutting off noses or hands. Following the other clauses of the amendment, it could be a punishment that is excessive, in that a lesser penalty would achieve the same ends. For example, if a …

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein

All Faculty Scholarship

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Self-Defense: Reasonable Beliefs Or Reasonable Self-Control?, Kenneth Simons

Faculty Scholarship

The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g. in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. …

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the …

Duress, Demanding Heroism And Proportionality: The Erdemovic Case And Beyond, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article discusses the Erdemovic case in order toexamine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion. After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a …

Child Pornography's Forgotten Victims, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

The goal of this paper is to demonstrate that possession of child pornography is not a victimless crime. It will illustrate the problem and explain the harm suffered by its victims. It will then trace factors that may have contributed to the perception that possession of child pornography is a victimless offense. The first factor is the dual nature of the child pornography laws that addresses both actual and future harm. When this duality is applied to possessors, their link to actual harm appears attenuated because the possessor is not involved in the acts of sexual abuse inherent in producing …

The Rise Of Spanish And Latin American Criminal Theory, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

As the contributions to this two-part special issue demonstrate, Spanish and Latin American criminal theory has attained a remarkable degree of sophistication. Regrettably, Anglo-American scholars have had limited access to this rich body of literature. With this volume, the New Criminal Law Review has taken a very important first step toward rectifying this situation.

Although the articles written for this special issue cover a vast range of subjects, they can be divided into four main categories: (i) the legitimacy of the criminal sanction, (2) the punishability of omissions, (3) the challenges that international criminal law and the fight against terrorism …

Book Review. Governing Through Crime: How The War On Crime Transformed American Democracy And Created A Culture Of Fear By Jonathan Simon, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.

Crime, Legitimacy, And Testilying, Bennett Capers

Faculty Scholarship

No abstract provided.

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Killing Them Softly: Meditations On A Painful Punishment Of Death, Robert I. Blecker

Articles & Chapters

This brief essay argues that any attempt by the U.S. Supreme Court and others to establish a painless punishment, especially lethal injection, fails logically and morally.

From the beginning, by definition, etymologically and existentially, “punishment” and “pain” have been inseparably connected. Those who advocate ‘painless punishment’ call for contradiction. Whether looking to the future (utilitarians) or the past (retributivists), we once clearly understood and embraced the inseparable connection between punishment and pain. Gradually, however, punishment has morphed into something which denies its own nature, culminating in today's move toward a massive dose of anesthetic as the ultimate punishment - as …

In Memoriam: Francis A. Allen, Yale Kamisar

Articles

Francis A. Allen graced the law faculties of five universities in the course of a remarkable, forty-six-year teaching career. In that time, he established himself as one of the half-dozen greatest twentieth century American scholars of criminal law and criminal procedure.

Legitmacy And Criminal Justice, Jeffrey A. Fagan

Faculty Scholarship

Surveys of public opinion over four decades consistently show that Americans have little confidence in the fairness or effectiveness of the criminal justice system and criminal law more generally. This crisis of confidence is most acute among racial minorities: surveys show that more than one in three Whites have little confidence in the police, compared to more than half of Black respondents. Both the lack of confidence and the racial breach in perceptions of the law and legal actors have persisted for nearly four decades, regardless of whether crime was rising or falling.

But we might reasonably ask whether and …

Strange Bedfellows, David M. Uhlmann

Articles

Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.

Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa

Journal Articles

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance …

The Denial Of Emergency Protection: Factors Associated With Court Decision Making, Carol E. Jordan, Adam J. Pritchard, Pamela Wilcox, Danielle Duckett-Pritchard

Office for Policy Studies on Violence Against Women Publications

Despite the importance of civil orders of protection as a legal resource for victims of intimate partner violence, research is limited in this area, and most studies focus on the process following a court’s initial issuance of an emergency order. The purpose of this study is to address a major gap in the literature by examining cases where victims of intimate partner violence are denied access to temporary orders of protection. The study sample included a review of 2,205 petitions that had been denied by a Kentucky court during the 2003 fiscal year. The study offers important insights into the …

After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …

Does Doj's Privilege Waiver Policy Threaten The Rationales Underlying The Attorney-Client Privilege And Work Product Doctrine? A Preliminary "No", Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

According to white-collar defense practitioners, the demise of the corporate attorney-client privilege and work product doctrine is imminent. While a variety of assaults have been identified, by far the most oft-cited culprit is the U.S. Department of Justice (DOJ), whose prosecutors, it is charged, have routinely insisted that corporations waive these protections to secure cooperation credit and declination of criminal action against the corporate actor and/or consideration at sentencing. DOJ has, by and large, vigorously defended its policies in this regard. Congress now threatens to inject itself into the debate: legislation entitled the "Attorney-Client Privilege Protection Act" has been introduced …

The Doj Risks Killing The Golden Goose Through Computer Associates/Singleton Theories Of Obstruction, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The DOJ, through its corporate criminal charging policy, puts a premium on corporate cooperation with prosecutors. The "partnership" that the DOJ's cooperation policy demands of corporations is extremely valuable. But the DOJ threatens to kill its own golden goose by bringing a spate of high-profile prosecutions of corporate executives (Sanjay Kumar, Stephen Richards, and Greg Singleton) for obstruction of an "official proceeding" premised on their lies to the corporation's own counsel.

International Criminal Law, Dermot Groome, Donald E. Shaver

Faculty Scholarly Works

No abstract provided.

Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben

Faculty Works

In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was …