Law Commons^™

Liability Insurance At The Tort-Crime Boundary, Tom Baker

Health Care Management Papers

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state's accusations. The crime-tort separation in liability insurance …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

The Sense And Nonsense Of Criminalizing Transfers Of Obscene Material: Criminalizing Privacy Violations (2008) 26 Singapore Law Review 126, Dennis J. Baker

Dr. Dennis J Baker

The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of …

Fantasy Crime, Susan Brenner

Susan Brenner

The article "Fantasy Crime" analyzes activity in virtual worlds that would constitute a crime if it were committed in the real world. The article reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. It analyzes the criminalization of virtual conduct that inflicts "harm" in the real world and virtual conduct that only inflicts "harm" in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. It then analyzes the necessity and propriety of criminalizing …

Taking The 'Hate' Out Of Hate Crimes: Applying Unfair Advantage Theory To Justify The Enhanced Punishment Of Opportunistic Bias Crimes, Jordan Woods

Jordan Blair Woods

C. English, Ed., Essays In The History Of Canadian Law, Volume Ix: Two Islands: Newfoundland And Prince Edward Island, R Blake Brown

Dalhousie Law Journal

The Osgoode Society for Canadian Legal History has played a vital role in encouraging legal history research in Canada, and one of its most important programs has been the Essays in the History of Canadian Law series. Canada lacks a legal history journal, but since 1981 the Osgoode Society has provided an opportunity for scholars to publish their work in one of its collections. Two Islands is the ninth such edited volume by the Osgoode Society that bears the title Essays in the History of Canadian Law. The first two volumes, published in 1981 and 1983, were general collections containing …

Determinative Sentencing Laws: Understanding The Law And Ethical Concerns, Linsey L. Krauss

Linsey L Krauss

No abstract provided.

North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead

Tamar R Birckhead

North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The …

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

Integrating Comparative Criminal Law: Criminal Law And Procedure, At Home And Abroad, Roger Fairfax

Presentations

No abstract provided.

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

University of Miami Inter-American Law Review

No abstract provided.

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Faculty Scholarship

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …

The Culpability Of Felony Murder, Guyora Binder

Journal Articles

Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for …

Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste

Dalhousie Law Journal

A "restorative" approach to criminality and conflict has been proposed in a number of common law jurisdictions in a variety of legal contexts, both civil and criminal, with an interesting exception: white-collar crime, which is discussedin an almost exclusively retributive vocabulary. This paper explores what a specifically restorative response to white-collar crime might look like, a response which above all else would seek to heal the harm the crime has done. In particular,the author looks at the possibilities for voluntary participation of victims and offenders; broad stakeholder inclusion and a focus on future relations rather than past offences-all necessaryparts of …

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

Dalhousie Law Journal

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their stxual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assaultor aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with nondisclosure of one's HIV status, the author concludes that criminal law should only …

The Modern Movement Of Vindicating Violations Of Criminal Defendants' Rights Through Judicial Discipline, Keith Swisher

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Death Is Unconstitutional: How Capital Punishment, Eric A. Engle

Eric A. Engle

Argues that capital punishment is unconstitutional as a violation of natural law because the punishment is disproportional, uncertain, and irrevocable.

The Age Of The Child: Interrogating Juveniles After Roper V. Simmons, Tamar R. Birckhead

Tamar R Birckhead

With its recent decision in Roper v. Simmons, invalidating the imposition of the death penalty on offenders who were younger than eighteen when their crimes were committed, the U.S. Supreme Court has heralded a major shift in the perspective of the legal system—and the culture at large—towards adolescents who commit crimes. Invoking social science research as well as a “common sense” understanding of the differences between teenagers and adults, the Court found that as a categorical matter, juveniles are not as culpable as adults and thus, cannot be classified among the “worst offenders,” deserving of the most severe punishment. Yet, …

Free To Leave? An Empirical Look At The Fourth Amendment’S Seizure Standard, David K. Kessler

David K Kessler

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. Both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide …

Ricin And The Assassination Of Georgi Markov, Marios Papaloukas, Christos Papaloucas, Apostolos Stergioulas

Marios Papaloukas

This article by Professors Marios Papaloukas, Christos Papaloukas, Apostolos Stergioulas investigates the causes of death of Georgi Markov, Georgi Markov, a well known Bulgarian novelist and playwright, dissident of the communist regime in his country, escaped to England where he dedicated himself in broadcasting from BBC World Service, the Radio Free Europe and the German Deutsche Welle against the communist party and especially against its leader Todor Zhivkov who in a party’s meeting told that he wanted Markov silenced for ever. On the 7th September 1978 Markov was executed with the deadly poison ricin injected to his thigh by a …

Human Dignity Under The Fourth Amendment, John D. Castiglione

John D. Castiglione

Fourth Amendment "reasonableness" jurisprudence as currently constituted is incapable of providing consistent decisions reflective of the underlying philosophical and moral structure of the Constitution. Increasingly, courts have allowed reasonableness analysis to devolve into little more than an awkward balancing exercise between the needs of law enforcement and the interests of "privacy." Upon initial consideration, this seems appropriate; the Fourth Amendment has been long been understood as a bulwark against unreasonable privacy invasions in the course of law enforcement. This understanding is, however, incomplete. As courts have moved towards an almost exclusive focus on privacy as the counter-balance to the government's …

Not Just The Peace Pipe But Also The Lance: Exploring Different Possibilities For Indigenous Control Over Criminal Justice, David Milward

Dr. David Milward

This article will exploring whether contrasts between restorative and punitive models of criminal justice inform an ideological struggle between Western and Indigenous approaches of criminal justice as Indigenous communities strive for greater control over criminal justice. The answer to this question will be examined in light of considerations for Indigenous control over justice. One concern by Western states is that Indigenous justice must strike the proper balance beteen community safety and offender healing. This paper contends that for self-determination to be effective, Indigenous leaders must include and consider the community at large when making decisions over criminal justice.

Fantasy Crime: The Role Of Criminal Law In Virtual Worlds, Susan W. Brenner

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes activity in virtual worlds that would constitute crime if they were committed in the real world. It reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. The Article then analyzes the criminalization of virtual conduct that inflicts "harm" in the real world and virtual conduct that only inflicts "harm" in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. Finally, it analyzes the necessity and propriety of criminalizing the second …

Minding The Liability Gap: American Contractors, Iraq, And The Outsourcing Of Impunity, Christina M. Blyth

University of Miami Law Review

No abstract provided.

Danforth, Retroactivity, And Federalism, J. Thomas Sullivan

Oklahoma Law Review

No abstract provided.

The Mental State Requirement For Accomplice Liability In American Criminal Law, John F. Decker

South Carolina Law Review

No abstract provided.

A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham

St. Mary's Law Journal

The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …

It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland

St. Mary's Law Journal

In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …

Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit

American University Law Review

This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …