Law Commons^™

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime.

I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s …

The Dilemma Of The Criminal Defendant With A Prior Record - Lessons From The Wrongfully Convicted, John H. Blume

Cornell Law Faculty Publications

This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might …

The Death Penalty In Delaware: An Empirical Study, John H. Blume, Theodore Eisenberg, Sheri Johnson, Valerie P. Hans

Valerie P. Hans

This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the …

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

An Evaluation Of The Need For And Functioning Of The Federal Sentencing Guidelines In The United States And Nigeria, Victoria T. Kajo

Cornell Law School Inter-University Graduate Student Conference Papers

The United States Federal Sentencing Guidelines, in use since 1987, was set up to reduce disparity in sentencing and its application was made mandatory. Though there are a few who are in favor of the guidelines, the guidelines as mandatory have been severely criticized and many have called for their abolition. Consequently, in the twin cases of United States v. Booker and United States v. Fanfan (2005) 125 S.Ct. 738, the US Supreme Court delivered judgment that had the effect of making the guidelines discretionary.

While the Nigerian legal system shares a Common Law background with the United States, Nigeria …

The Torture Of Sami Al Arian, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Why Is It A Crime To Stomp On A Goldfish? Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and sometimes …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Presidential Authority And The War On Terror, Joseph W. Dellapenna

Working Paper Series

Immediately after the attacks on the United States of September 11, 2001, President George W. Bush claimed, among other powers, the power to launch preemptive wars on his own authority; the power to disregard the laws of war pertaining to occupied lands; the power to define the status and treatment of persons detained as “enemy combatants” in the war on terror; and the power to authorize the National Security Agency to undertake electronic surveillance in violation of the Foreign Intelligence Surveillance Act. With the exception of the power to launch a preemptive war on his own authority (for which he …

Portland, Prohibition And Probable Cause: Maine's Role In Shaping Modern Criminal Procedure, Wesley M. Oliver

Wesley M Oliver

At the time the Constitution was written, police officers had very little power. In most cases they were required to wait for a complaint from a victim to arrest, or a warrant from a magistrate to perform a search of any kind. Victims had extraordinary discretion in this era. Generally, only victims could seek arrest or search warrants and they were required only to allege that they had probable cause to support the arrest or search they sought. In most cases, an officer could not obtain a warrant even if he could provide the facts supporting his suspicions. Warrantless arrests …

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

All Faculty Scholarship

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call 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 …

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

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.

Teaching Rape: Some Reflections On Pedagogy, Michelle Dempsey

Michelle Madden Dempsey

This short essay, which discusses the difficulties of teaching sexual offences, was written for the Oxford Law Society and published in the student run magazine, The Verdict, in Trinity Term 2007.

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski

John J. Capowski