Law Commons^™

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 …

Legality Principle Of Crimes And Punishments In Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The Principle of legality of crimes and punishments (nullum crimen, nulla poena sine lege) refers to the fact that an act is not considered a crime and deserves no punishment, unless the Legislator determines and announces the criminal title and its penalty before.

The legality principle protects individual security by ensuring basic individual libertties against the arbitrary and unwarranted intrusion of the state. Thus, the criminal judge can’t call the individuals’ acts crime and assign punishments for them or exert punishments that are not prescribed by the Legislator without any letter of law. If an act is morally rebutted or …

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 formal …

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

George Mason University School of Law Working Papers Series

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

Screening, Plea Bargains And The Innocent Problem, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

Courts in common law countries reject plea-agreements only when the agreed upon sentence is seen as exceedingly lenient. This judicial intervention is designed to ensure that plea-bargaining does not undermine deterrence. Many legal scholars argue against this policy, claiming that courts should prohibit plea-bargaining all together. They argue that the plea-bargaining system increases the risk of wrongful convictions. Economists often criticize this judicial intervention as well, but for a different reason. Rather than advocating the abolition of plea-bargaining, many economists argue that the courts should accept all plea-agreements without review. They claim that plea-bargaining can help ensure an efficient use …

The Next Era Of Sentencing Reform, Steven L. Chanenson

Working Paper Series

This article charts a path for criminal sentencing in the wake of the Supreme Court’s recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O’Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that “Over 20 years of sentencing reform are all but lost.” All is most assuredly not lost. Blakely, properly viewed, is an opportunity – albeit a disruptive one – to re-think and improve our sentencing systems.

The Blakely court interpreted the Sixth Amendment to require that any fact, other than the fact of prior conviction, …

The Next Era Of Sentencing Reform, Steven L. Chanenson

Steven L. Chanenson

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 …

An Empirical Study Of Public Defender Effectiveness: Self-Selection By The ‘Marginally Indigent’, Morris B. Hoffman, Paul H. Rubin, Joanna M. Shepherd

ExpressO

Abstract: An econometric study of all felony cases filed in Denver, Colorado, in 2002, shows that public defenders achieved poorer outcomes than their privately retained counterparts, measured by the actual sentences defendants received. But this study suggests that the traditional explanation for this difference—under-funding resulting in overburdened public defenders—may not tell the whole story. The authors discovered a large segment of what they call “marginally indigent” defendants, who appear capable of hiring private counsel if the charges against them are sufficiently serious. When the sentence data was controlled for the seriousness of the charges, however, public defenders still performed more …

Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna

Law & Economics Working Papers Archive: 2003-2009

Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill …

Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume

Cornell Law Faculty Publications

Of the 822 executions, in the modern era of capital punishment, 106 involved volunteers, or inmates who chose to waive their appeals and permit the death sentence to be carried out. The debate about volunteers, although intense, has primarily been polemic. Those who wish to curtail a death row inmate’s ability to waive his appeals refer to volunteer cases as nothing more than “state assisted suicide;” advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death row inmate’s right to choose whether to accept his punishment.

This article takes a different approach. …

Discrimination In Sentencing On The Basis Of Afro-Centric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

ExpressO

For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person’s Afro-centric features. Section I of the article describes a line of social science research that shows that a person’s Afro-centric features have a strong biasing effect on judgment such …

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 …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

Sex, Shame, And The Law: An Economic Perspective On Megan's Law, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

This Article focuses on the question, how should policymakers aiming to minimize the cost of sanctioning utilize legal and nonlegal sanctions when designing a system of criminal sanctions. After presenting the general economic case for the use of nonlegal sanctions the article turns to present a model of shaming, which unlike existing models, incorporates the endogenous effects of legal and nonlegal sanctions. This model demonstrates that tailoring an efficient regime that combines legal and nonlegal sanctions might be more difficult than previously perceived by law and economics scholars. A specific case study presented in this article is of the current …

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.

State, Be Not Proud: A Retributivist Defense Of The Commutation Of Death Row And The Abolition Of The Death Penalty, Dan Markel

ExpressO

In the aftermath of Governor Ryan's decision last year to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan’s action was a “grave injustice” and, from a retributivist perspective, “an unmitigated moral disaster.” This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide …

Hoist With Their Own Petard?, Steven L. Chanenson

Working Paper Series

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

Hoist With Their Own Petard?, Steven Chanenson

Steven L. Chanenson

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

Criminal Forfeiture Procedure: An Analysis Of Developments In The Law Regarding The Inclusion Of A Forfeiture Judgment In The Sentence Imposed In A Criminal Case, Stefan D. Cassella

Stefan D Cassella

The article surveys the developments in the case law regarding criminal forfeiture procedure in 2003-04.

Flouting The Law, Janice Nadler

ExpressO

What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust …

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

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 …

A Review Of Parliamentary Privilege With An Approach To Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The necessity of immunity of parliament and its Members has led to determine and assure particular privilege in the Constitutions or ordinary laws in the great majority of countries. This legal institution is to provide freedom of speech and to maintain the independence of representatives in the exercise of their duties without undue interference or fear.

To define and justify the necessity of it, different theories like "the prestige of representatives' legal personality" and "doctrine of necessity" have been introduced.

The legal supports, which observe the parliamentary privilege, can be generally studied in two categories with distinct descriptions and effects; …

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan

ExpressO

Scientifically valid instruments are being used for the first time to assess an individual’s risk of violence in criminal sentencing and in the civil commitment of mental patients and sexual predators. Risk factors on these instruments pertain to what the person is (e.g., gender), what the person has (e.g., personality disorder), what the person has done (e.g., past violence), and what has been done to the person (e.g., past victimization). In this Article, I argue that in criminal law, with its emphasis on blameworthiness for actions taken, the admissibility of scientifically valid risk factors is properly constrained to those that …

An Attitudinal Theory Of Excuse In Criminal Law, Peter Westen

ExpressO

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it. After defining "excuse" against commentators who argue that it cannot be coherently defined, and after criticizing competing theories of excuse, I argue that the feature that renders persons normatively blameless -- and, typically, legally blameless, too -- for engaging in conduct that a criminal statute prohibits is the possession of a certain attitude with which he engages in it. A person …

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

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 …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …