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Articles 1 - 23 of 23
Full-Text Articles in Law
The Comparative Nature Of Punishment, Adam Kolber
The Comparative Nature Of Punishment, Adam Kolber
Faculty Scholarship
No abstract provided.
Rethinking The Constitutional Criminal Procedure Of Juvenile Transfer Hearings: Apprendi, Adult Punishment And Adult Process, Jenny E. Carroll
Rethinking The Constitutional Criminal Procedure Of Juvenile Transfer Hearings: Apprendi, Adult Punishment And Adult Process, Jenny E. Carroll
Faculty Scholarship
This article makes valuable new contributions to the burgeoning scholarly discourse on Apprendi v. New Jersey-a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt. Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found by a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile …
No Rational Basis: The Pragmatic Case For Marijuana Law Reform, Eric D. Blumenson, Eva S. Nilsen
No Rational Basis: The Pragmatic Case For Marijuana Law Reform, Eric D. Blumenson, Eva S. Nilsen
Faculty Scholarship
This article presents a critique of marijuana prohibition and suggests some alternative regulatory approaches that would be more productive and consonant with justice. Part I relies on a forty-year empirical record to demonstrate that (1) reliance on a law enforcement approach has aggravated rather than mitigated the risks involved with marijuana use, and (2) criminalization, which results in the arrest of more than 700, 000 Americans annually for possession of any amount of marijuana, is an inhumane and destructive response to an act that almost 100 million Americans have committed. Part II assesses the relative merits of several alternative reform …
How (Not) To Think Like A Punisher, Alice Ristroph
How (Not) To Think Like A Punisher, Alice Ristroph
Faculty Scholarship
No abstract provided.
Political Economy Of Criminal Procedure, Keith N. Hylton
Political Economy Of Criminal Procedure, Keith N. Hylton
Faculty Scholarship
This chapter presents a public choice theory of criminal procedure. The core idea is that criminal procedure is best understood as a set of rules designed to thwart attempts to use the state's law enforcement power in a predatory fashion or in order to transfer wealth generally. For the most part we focus on a set of core procedural protections that can be considered long-established norms.
Massachusetts Zappers - Collecting The Sales Tax That Has Already Been Paid, Richard Thompson Ainsworth
Massachusetts Zappers - Collecting The Sales Tax That Has Already Been Paid, Richard Thompson Ainsworth
Faculty Scholarship
No other New England state is as vulnerable to Zappers as is the State of Massachusetts. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs).
Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in Massachusetts. A global perspective says: it is highly unlikely that Zappers are not in the Commonwealth – we just need to find them. In fact, using a Quebec template, tax losses from Zappers and related frauds in …
Attempt By Omission, Michael T. Cahill
The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt
The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt
Faculty Scholarship
I wrote this essay after participating in a 2006 workshop on Criminal Law and Cultural Diversity, which discussed, among other subjects, the wisdom of providing a "cultural defense." Uncertain just how far such a defense might expand on defenses already available, I undertook to explore that topic.
The phrase "a cultural defense" suggests an either/or choice that any legal system might make. That matters are much more complex than this is part of the burden of this essay. A "cultural defense" in its most general sense refers to a wide range of ways in which evidence about a defendant's cultural …
A Witness To Justice, Jessica Silbey
A Witness To Justice, Jessica Silbey
Faculty Scholarship
In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …
Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue
Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue
Faculty Scholarship
Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner
The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner
Faculty Scholarship
Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise …
Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan
Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan
Faculty Scholarship
This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …
The Subjective Experience Of Punishment, Adam Kolber
The Subjective Experience Of Punishment, Adam Kolber
Faculty Scholarship
No abstract provided.
Prosecuting Core Crimes In The United States: Recent Changes And Prospects For 2010, Naomi Roht-Arriaza
Prosecuting Core Crimes In The United States: Recent Changes And Prospects For 2010, Naomi Roht-Arriaza
Faculty Scholarship
No abstract provided.
Policing, Place, And Race, Bennett Capers
Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman
Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman
Faculty Scholarship
This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …
Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt
Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt
Faculty Scholarship
The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It …
Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph
Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph
Faculty Scholarship
In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …
Beyond Protection, Philip A. Hamburger
Beyond Protection, Philip A. Hamburger
Faculty Scholarship
Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly dificult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection.
This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no …
The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman
The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman
Faculty Scholarship
In reflecting on the arc of US and coalition detention operations in Afghanistan, three key issues related to the law of armed conflict stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court's holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial …
How To Improve Empirical Desert, Adam Kolber
How To Improve Empirical Desert, Adam Kolber
Faculty Scholarship
No abstract provided.
The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller
The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller
Faculty Scholarship
Fabricated testimony by informants often plays an important role in convictions of the innocent. In this article, I examine the particularly problematic situation of defendants who are innocent of the particular crime charged but are not strangers to crime. As to such defendants, potential informants abound among crime associates, and they have a ready story line that authorities are preconditioned to accept. Independent proof, which could be an antidote, will predictably be lacking. Indeed, that the informant has exclusive, critical knowledge often leads the prosecution to offer particularly tempting deals.
I focus on the case of Lee Wayne Hunt, a …