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Articles 1 - 21 of 21
Full-Text Articles in Law
Conceptualizing Blakely, Douglas A. Berman
Conceptualizing Blakely, Douglas A. Berman
The Ohio State University Moritz College of Law Working Paper Series
The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion …
Anthrax Hoaxes, Ira Robbins
Anthrax Hoaxes, Ira Robbins
Articles in Law Reviews & Other Academic Journals
INTRODUCTION: "[Y]ou are a disgusting piece of dirt."' Judge Steven Shutter, a county judge in South Florida, used these words to describe a twenty- four-year-old woman whom he labeled a terrorist2 and who was condemned by the media.3 Aside from name-calling, Judge Shutter raised the woman's bail from $3,500 to $25,000 when he learned the nature of the offense, 'just in case" the woman might be able to afford the lower bond.4 Given the strength of Judge Shutter's animosity toward her, one might assume that Yasmin Kassima Sealey- Doe had provided assistance to the terrorists who attacked the World Trade …
Anthrax Hoaxes, Ira P. Robbins
Anthrax Hoaxes, Ira P. Robbins
Ira P. Robbins
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …
The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution Within The United States That Is Unconstitutionally Overbroad, Erin Treacy
ExpressO
The RAVE Act amends the 1986 "Crackhouse Statute" on the assumption that electronic music concerts are comparable to crackhouses. This article submits that the rationale behind the former Crackhouse statute does not logically support the RAVE Act and that the new law, as enacted, is unconstitutionally overbroad, infringing upon First Amendment rights. This article shows that the “rave culture,” its associated drug use and electronic music performances (sometimes known as raves) are not inextricably linked. The article also explores policy arguments that may be asserted against the RAVE Act and provides suggestions on how to amend the existing statute to …
Apprendi's Limits, Roger Craig Green
Apprendi's Limits, Roger Craig Green
ExpressO
This article argues that Blakely v. Washington did not decide (explicitly or implicitly) whether the Federal Sentencing Guidelines are constitutional. It also claims that the best interpretation of Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The notion that statutory maxima are constitutionally important stems from separation of power principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict.
A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs
A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs
ExpressO
Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …
'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami
'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami
ExpressO
In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.
I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …
The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller
The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller
ExpressO
The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.
In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.
This article attempts a more complex study of criminal abortion’s legal and …
“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin
“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin
ExpressO
No abstract provided.
Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman
Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman
ExpressO
No abstract provided.
Deportations, Removals And The 1996 Immigration Acts: A Modern Look At The Ex Post Facto Clause, Lupe S. Salinas
Deportations, Removals And The 1996 Immigration Acts: A Modern Look At The Ex Post Facto Clause, Lupe S. Salinas
ExpressO
The article addresses the punitive aspects of the deportation procedures as impacted by the 1996 Immigration Acts. When faced with the precedents in the field, that deportation is a civil procedure, federal courts conclude that the Ex Post Facto Clause does not apply. However, the article draws upon common law and other historical bases for the conclusion that a modern view should hold that conviction-related removals are punitive and subject to ex post facto analysis.
International Child Abductions: The Challenges Facing America , Charles F. Hall
International Child Abductions: The Challenges Facing America , Charles F. Hall
ExpressO
International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …
Crime Severity And Constitutional Line-Drawing, Eugene Volokh
Crime Severity And Constitutional Line-Drawing, Eugene Volokh
ExpressO
No abstract provided.
Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf
Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf
ExpressO
No abstract provided.
Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry
Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry
ExpressO
Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …
Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson
Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson
ExpressO
Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an …
Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin
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.
Without Charge: Assessing The Due Process Rights Of Unindicted Co-Conspirators, Ira Robbins
Without Charge: Assessing The Due Process Rights Of Unindicted Co-Conspirators, Ira Robbins
Articles in Law Reviews & Other Academic Journals
The grand jury practice of naming individuals as unindicted co-conspirators routinely results in injury to reputations,lost employment opportunities, and a practical inability to run for public office. Yet, because these individuals are not parties to a criminal trial, they have neither the right to present evidence northe opportunity to clear their names. Thus, Professor Robbins argues that the practice violates the Fifth Amendment guarantee that “[n]o person shall . . . be deprived of life, liberty, or property,without due process of law[.]” While prosecutors may offer many justifications to support the practice of namingunindicted co-conspirators, these reasons do not withstand …
Implementing Nj's Anti-Terrorism Laws To Prevent Terrorist Financing: A Statutory Analysis Of The September 11, 2001 Anti-Terrorism Act, James B. Johnston
Implementing Nj's Anti-Terrorism Laws To Prevent Terrorist Financing: A Statutory Analysis Of The September 11, 2001 Anti-Terrorism Act, James B. Johnston
James B Johnston
The 9/11 hijackers received much of the money they used to implement their plan of murder by funnelling money sent to them by Al Qaeda opertives to banks located in NJ. As a result the NJ legislature signed off on powerful terrorist financing legislation when it passed the September 11, 2001 Anto Terrorism Act. This article provides a step by step analysis of these new statutes and discusses other state legislation that can allow law enforcement to confiscate money linked to terrorism.
Without Charge: Assessing The Due Process Rights Of Unindicted Co-Conspirators, Ira P. Robbins
Without Charge: Assessing The Due Process Rights Of Unindicted Co-Conspirators, Ira P. Robbins
Ira P. Robbins