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2005

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Articles 1 - 30 of 245

Full-Text Articles in Law

American Legal Education, Robert Bloom Oct 2013

American Legal Education, Robert Bloom

Robert Bloom

No abstract provided.


Summary Of Williams V. State, 121 Nev. Adv. Op. 90, Jacqueline A. Gilbert Dec 2005

Summary Of Williams V. State, 121 Nev. Adv. Op. 90, Jacqueline A. Gilbert

Nevada Supreme Court Summaries

A jury, selected from the third venire, convicted Gary Jerome Williams of battery with use of a deadly weapon causing substantial bodily harm on Robin Swope. On June 22, 2003, Williams and the victim (Robin Swope) engaged in an altercation after Swope saw Williams speaking to Swope’s thirteen-year-old daughter. At trial, most details of the altercation were highly disputed including, who was the initial aggressor, who produced a knife, and whether Swope used highly inflammatory language. In 1985, when he was seventeen, the State of Arkansas convicted Williams of aggravated battery, sentencing him to fifteen years confinement. The Nevada ...


The Problems With Blaming, Theodore Y. Blumoff Dec 2005

The Problems With Blaming, Theodore Y. Blumoff

ExpressO

This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. I synthesize the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s ...


Summary Of Bolden V. State, 121 Nev. Adv. Op. 86, Kelly Dove Dec 2005

Summary Of Bolden V. State, 121 Nev. Adv. Op. 86, Kelly Dove

Nevada Supreme Court Summaries

No abstract provided.


Reforming The Appellate Process For Pennsylvania Capital Punishment, Paul R. Teichert Dec 2005

Reforming The Appellate Process For Pennsylvania Capital Punishment, Paul R. Teichert

ExpressO

The death penalty has long been a staple of governmental punishment. It has been incorporated in the Hammurabi Code of ancient Babylon on down to the current laws of many American States. In early America, capital punishment, exercised at the local level, was ubiquitous and widely accepted. Pennsylvania lists itself among the states currently employing the death penalty. The death penalty in Pennsylvania began in the late 1600’s when the first colonists carried out public hangings as a punishment for various crimes. The public nature of the punishment, initially, was intended to deter community members from committing the same ...


Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders Dec 2005

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new ...


Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman Dec 2005

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well ...


The Pinkerton Doctrine And Murder, Matthew A. Pauley Dec 2005

The Pinkerton Doctrine And Murder, Matthew A. Pauley

The University of New Hampshire Law Review

[Excerpt] "Suppose that A hires B to rob a bank in Massachusetts and A then hires C to rob a bank in Rhode Island. B and C have not met face to face, but each knows he is part of a conspiracy to rob banks in more than one state. All agree that no one will be killed in the robberies. A then procures D to get a car for use in the robberies. B uses D’s car to rob his bank. During the robbery of C’s bank, C pulls out a gun and shoots and kills the ...


White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas Dec 2005

White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas

William & Mary Law Review

No abstract provided.


Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg Dec 2005

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The ...


Summary Of Sampson V. State, 121 Nev. Adv. Op. 80, Denise S. Balboni Dec 2005

Summary Of Sampson V. State, 121 Nev. Adv. Op. 80, Denise S. Balboni

Nevada Supreme Court Summaries

Admission of expert testimony is within the sole discretion of the trial judge. Abuse of discretion does not exist where defense counsel waited until the eighth day of trial to seek to call a newly-named expert witness without sufficient justification for the delay. The Nevada Supreme Court adopts the rule against admission of witness and prosecution comments regarding a defendant’s invocation of Fourth Amendment rights when such evidence is used to support an inference of guilt. When the district court admits such evidence, this Court will determine the existence of reversible error by application of the same test used ...


Expanding Forfeiture Without Sacrificing Confrontation After Crawford, Joshua Deahl Dec 2005

Expanding Forfeiture Without Sacrificing Confrontation After Crawford, Joshua Deahl

Michigan Law Review

The central holding of Crawford v. Washington is fairly straightforward: The Confrontation Clause bars the admission of out-of-court testimonial statements unless the defendant had a prior opportunity to cross-examine the witness. Crawford, however, has an often overlooked caveat. In renouncing numerous exceptions to the confrontation right, the Court rejected only those that purport to test the reliability of testimonial statements. It left equitable exceptions undisturbed. As the Court pointed out, "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds." The parameters of the rule of forfeiture are a matter of some dispute ...


The Power Of An Indictment – The Legal Implications Of The Demise Of Arthur Andersen, James Kelly Nov 2005

The Power Of An Indictment – The Legal Implications Of The Demise Of Arthur Andersen, James Kelly

ExpressO

This article examines the impact an indictment can have against a limited liability partnership of professionals, in particular the Justice Department’s prosecution of accounting firm Arthur Andersen. Following a brief chronological description of the factual background of the case, the article then examines the weight an indictment is supposed to have, followed by the standards for issuing an indictment against an entire partnership rather than just the individuals who allegedly performed wrongful acts. The notion of prosecutorial discretion is heavily emphasized, and the factors that contributed to the prosecution of Andersen are discussed. Finally, the implications of this situation ...


Detection Avoidance, Chris William Sanchirico Nov 2005

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing ...


Prison Rape Elimination Act (Prea) Summary Of Responses From Juvenile Focus Group On Staff Sexual Misconduct And Youth On Youth Sexual Assault (Focus Group: Juvenile Justice Agencies - Addressing Rape Of Youth In Correctional Custody, Overview Of Current Efforts, Close Out And Reactions (Delivery Strategies, Products)), Brenda V. Smith, Andie Moss Nov 2005

Prison Rape Elimination Act (Prea) Summary Of Responses From Juvenile Focus Group On Staff Sexual Misconduct And Youth On Youth Sexual Assault (Focus Group: Juvenile Justice Agencies - Addressing Rape Of Youth In Correctional Custody, Overview Of Current Efforts, Close Out And Reactions (Delivery Strategies, Products)), Brenda V. Smith, Andie Moss

Presentations

Responses to thirteen questions regarding curriculum related to staff sexual misconduct with youth and youth on youth sexual assault are provided. "The objectives of the focus groups included: (1) to gather data that will inform NIC [National Institute of Corrections] in how to best develop a juvenile oriented curriculum on staff sexual misconduct; (2) to gather data that will guide NIC in identifying the major staff sexual misconduct related issues in juvenile corrections, including what stakeholders should be consulted, and what strategies should be utilized in naming the issues and building knowledge about the PREA [Prison Rape Elimination Act]; and ...


The Misery Of Mitra: Considering Criminal Punishment For Computer Crimes, James T. Tsai Nov 2005

The Misery Of Mitra: Considering Criminal Punishment For Computer Crimes, James T. Tsai

ExpressO

This paper analyzes the policies and philosophy of punishment for computer crimes under the post-Sept. 11th regime. I argue that the judicial discourse represented in Mitra represents a willingness to use the Computer Fraud and Abuse Act to go after defendants that cause trouble with critical infrastructures, the so-called “domestic terrorist.” This is manifested in the levels of punishments for such offenses and calls into question whether the traditional theories of punishment are applicable. I argue that as a policy, it makes good sense but the hazy definitions of terrorism may present problems for its success, and instead an approach ...


Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah Nov 2005

Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah

ExpressO

This is a discussion of the legal and economic ramifications of password theft.


Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass Nov 2005

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to ...


Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai Nov 2005

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.


Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough Nov 2005

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

This article examines the most significant cases from the Supreme Court of Virginia and the Court of Appeals of Virginia over the past year. The article also outlines some of the most consequential changes to the law enacted by the Virginia General Assembly during the 2005 Session in the field of criminal law and procedure.


Proportionality As A Principle Of Limited Government, Alice Ristroph Nov 2005

Proportionality As A Principle Of Limited Government, Alice Ristroph

Faculty Scholarship

No abstract provided.


Recognizing Victims In The Federal Rules Of Criminal Procedure: Proposed Amendments In Light Of The Crime Victims' Rights Act, Paul G. Cassell Nov 2005

Recognizing Victims In The Federal Rules Of Criminal Procedure: Proposed Amendments In Light Of The Crime Victims' Rights Act, Paul G. Cassell

BYU Law Review

No abstract provided.


Speechless: The Silencing Of Criminal Defendants, Alexandra Natapoff Oct 2005

Speechless: The Silencing Of Criminal Defendants, Alexandra Natapoff

Alexandra Natapoff

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that this silencing is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face ...


On The Potential Of Neuroscience: A Comment On Greene And Cohen’S "For The Law, Neuroscience Changes Nothing And Everything", Theodore Y. Blumoff Oct 2005

On The Potential Of Neuroscience: A Comment On Greene And Cohen’S "For The Law, Neuroscience Changes Nothing And Everything", Theodore Y. Blumoff

ExpressO

In a recent article, Joshua Greene and Jonathan Cohen add their voices to an emerging discussion about the place of neuroscience in law and social policy. They argue convincingly that new data from the developing field of neuroscience will dramatically and positively change our legal system. I agree with their conclusions, but I believe that their commitment to a kind of neuroscientific determinism or essentialism is wrong, unnecessary, and even dangerous; it would move law in a direction that eliminates ongoing, normative decision-making. In the essay I have attached, I first set the stage by discussing the commitment of our ...


Symposium On Sentencing Rhetoric: Competing Narratives In The Post-Booker Era, Roger Williams University School Of Law Oct 2005

Symposium On Sentencing Rhetoric: Competing Narratives In The Post-Booker Era, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Summary Of Blake V. State, 121 Nev. Adv. Op. 77, Anna Arroyo Oct 2005

Summary Of Blake V. State, 121 Nev. Adv. Op. 77, Anna Arroyo

Nevada Supreme Court Summaries

No abstract provided.


Summary Of Bennett V. Dist. Ct., 121 Nev. Adv. Op. 78, Collin Webster Oct 2005

Summary Of Bennett V. Dist. Ct., 121 Nev. Adv. Op. 78, Collin Webster

Nevada Supreme Court Summaries

No abstract provided.


Prosecuting Counterfeit License Plates: A Law Clerk's Constitutional Argument, Miguel R. Acosta Oct 2005

Prosecuting Counterfeit License Plates: A Law Clerk's Constitutional Argument, Miguel R. Acosta

ExpressO

The article discusses the status and probable future of the counterfeit license plate statute in Florida, Florida Statute Section 320.26(1)(a). It prohibits the possession of counterfeit license plates. However, it contains no explicit mens rea requirement. As a result, this law has been challenged repeatedly of late because it is punishable up to five years in prison and because it could potentially be used to punish innocent conduct.


Easing The Burden: Mediating Misdemeanor Criminal Complaints, Gabriel H. Teninbaum Oct 2005

Easing The Burden: Mediating Misdemeanor Criminal Complaints, Gabriel H. Teninbaum

ExpressO

Overburdened courts are causing critical breakdowns in the criminal justice system. However, some jurisdictions are developing creative programs to ease the burden on courts. This paper focuses on mediation programs by which courts divert criminal cases away from traditional prosecution and allow a victim-offender mediation to occur as an alternative to trials for alleged criminal acts. The new model is beginning to work: annually more than nine thousand cases are referred out of district courts by district attorneys and judges to dispute settlement centers; over seven thousand or more are resolved prior to possible court involvement, and mediation is helping ...


Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii Oct 2005

Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii

Faculty Publications

This is the third in a series of articles analyzing the current turmoil in federal criminal sentencing and offering suggestions for improvements in the federal sentencing system. The first article, "The Failure of the Federal Sentencing Guidelines: A Structural Analysis," 105 COLUMBIA L. REV. 1315 (2005), analyzed the structural failures of the complex federal sentencing guidelines system, particularly those arising from imbalances among the primary institutional sentencing actors - Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission. The second, "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker," 2005 U. OF CHICAGO LEGAL FORUM 149 (2005 ...