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Articles 1 - 15 of 15

Full-Text Articles in Law

Forgiveness In Criminal Procedure, Stephanos Bibas Jan 2007

Forgiveness In Criminal Procedure, Stephanos Bibas

Faculty Scholarship at Penn Law

Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would ...


Calling A Truce In The Culture Wars: From Enron To The Cia, Craig S. Lerner Aug 2005

Calling A Truce In The Culture Wars: From Enron To The Cia, Craig S. Lerner

George Mason University School of Law Working Papers Series

This Article compares and evaluates recent Congressional efforts to improve institutional “cultures” in the private and public sectors. The Sarbanes-Oxley Act of 2002 was designed to upgrade corporate culture by patching up the “walls” that separate corporate management from boards of directors, accountants, lawyers, and financial analysts. The Intelligence Reform Act of 2005 took a different tack, hammering away at walls that supposedly segmented the intelligence community. The logic was that the market failed because people did not observe sufficient formalities in their dealings with one another, while the intelligence community failed precisely because people kept their distance from one ...


Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson Feb 2005

Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed.

Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological ...


Whistle Blowing, Ben Depoorter, Jef De Mot Nov 2004

Whistle Blowing, Ben Depoorter, Jef De Mot

George Mason University School of Law Working Papers Series

For law enforcement purposes corruption and fraud are hard battles. Because of the highly secretive and premeditated nature of these crimes, prime witnesses are themselves often implicated in the fraudulent transaction. Promises of immunity and whistle blowing rewards are often required to resolve these information asymmetries. These insights have set a trend, both in scholarship and law enforcement practice, towards reward-based approaches (carrots), as an alternative or complement to punishment based deterrence (sticks). Applying the U.S. False Claims Act (FCA) as an analytical framework, we provide a critical review of the efficiency limitations of whistle blowing. More specifically, the ...


Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas Jun 2004

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

Faculty Scholarship at Penn Law

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The ...


Pleas' Progress, Stephanos Bibas May 2004

Pleas' Progress, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach Jan 2004

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.


Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin Jan 2004

Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.


Dying Twice: Incarceration On Death Row, Michael B. Mushlin Jan 2003

Dying Twice: Incarceration On Death Row, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Dying Twice is an important report. The work is a collaboration between the Corrections Committee of the Association of the Bar of the City of New York, which I chaired, and the Committee on Capital Punishment of the Association chaired by Norman Greene. The working group that researched and wrote the report was drawn from members of both committees. The attorneys and the physician who served on the committee are wonderful, talented, dedicated people. It was a pleasure to work with professionals of this caliber on such an important effort. Dying Twice was endorsed as the position of the Association ...


Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky Jan 2002

Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky

Faculty Scholarship at Penn Law

No abstract provided.


Dying Twice: Conditions On New York's Death Row, Michael B. Mushlin Jan 2002

Dying Twice: Conditions On New York's Death Row, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In 1995 New York State revived the death penalty as a punishment for certain categories of murder, and established a “death row” for condemned men at the Clinton Correctional Facility in Dannemora, New York (variously, “Clinton” or the “Prison”). Four years later, in October 1999, two committees of the Association of the Bar of the City of New York (the “Association”) joined together to study the conditions of confinement on this death row--or, as it is officially called, the Unit for Condemned Persons (the “UCP”). These committees--the Committee on Corrections and the Committee on Capital Punishment--formed a joint subcommittee (the ...


Judicial Fact-Finding And Sentence Enhancements In A World Of Guilty Pleas, Stephanos Bibas Jan 2001

Judicial Fact-Finding And Sentence Enhancements In A World Of Guilty Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Deportation And Justice: A Constitutional Dialogue, Daniel Kanstroom Jul 2000

Deportation And Justice: A Constitutional Dialogue, Daniel Kanstroom

Boston College Law School Faculty Papers

Recent statutory changes to the United States immigration law have resulted in a large increase in the number of lawful permanent resident noncitizens who are deported because of prior criminal conduct. Now, deportation is often a virtually automatic consequence of conviction for an increasingly minor array of crimes including possessory drug offenses and shoplifting. Under current statutory law, permanent resident noncitizens may be deported for crimes that were not grounds for deportation when they were committed and there may be no possibiilty of mercy or humanitarian relief. This Dialogue explores arguments for and against this system. Specifically, it examines the ...


Describing Without Circumscribing: Questioning The Construction Of Gender In The Discourse Of Intimate Violence, Phyllis Goldfarb Mar 1996

Describing Without Circumscribing: Questioning The Construction Of Gender In The Discourse Of Intimate Violence, Phyllis Goldfarb

Boston College Law School Faculty Papers

In this Article, Professor Goldfarb examines the construction of gender roles in the discourse on intimate violence. The Article argues that this discourse assumes that male violence against female intimates represents the problems of battering in its entirety. In doing so, the discourse renders invisible the battering that occurs outside this discourse, most notably battering within same-sex relationships. The Article focuses on how the gender assumptions in the domestic violence discourse affected the representation of the Framingham Eight, a group of women who killed their batterers and were incarcerated in the women’s prison in Framingham, Massachusetts. These women petitioned ...


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Jan 1993

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Boston College Law School Faculty Papers

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...