Law Commons^™

The Internet Archive’S National Emergency Library: Is There An Emergency Fair Use Superpower?, Aaron Schwabach

Northwestern Journal of Technology and Intellectual Property

On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of ControlledDigitalLending.org provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law …

You Belong With Me: Recording Artists’ Fight For Ownership Of Their Masters, Ann Herman

Northwestern Journal of Technology and Intellectual Property

Copyright law, governed by the Copyright Act, is based on utilitarian theory, which balances artists’ interests in ownership of theircreations with the public’s interest in accessing and enjoying such creations. Copyright law provides for rights for creators of sound recordings, which include master rights—the recording artist’s copyright in the recording. Taylor Swift has brought the concept of master rights into the forefront of pop culture. In June 2019, Swift’s masters—the original sound recordings of her songs—were sold, and she publicly aired her dissatisfaction with the sale, as well as with overall premise that artists do not have a complete right …

Introduction To Symposium, "Human Rights And Access To Justice In Ethiopia", Thomas Geraghty

Northwestern Journal of Human Rights

No abstract provided.

Remedies For Human Rights Violations: A Reform Proposal For Addressing Victims Of Criminal Proceedings In Ethiopia, Abdi Jibril Ali

Northwestern Journal of Human Rights

No abstract provided.

Conditions Of Human Rights In Ethiopia In The Aftermath Of Political Reform, Andinet Adinew Tesfaye, Endalkachew Abera Mekuriya

Northwestern Journal of Human Rights

No abstract provided.

Multiple Legal Orders In Ethiopia: An Impediment On The Enforcement Of Women Rights, Daniel E. Alemayehu

Northwestern Journal of Human Rights

No abstract provided.

Disability Rights Are Human Rights: Pushing Ethiopia Towards A Rights-Based Movement, Sirak Akalu Iyassu, Fiona Mckinnon

Northwestern Journal of Human Rights

Official estimates suggest that 95 percent of Ethiopia’s disabled live under the poverty line and are unemployed. To get by, many must beg or depend on family and friends. The Ministry of Labor and Social Affairs, the ministry responsible for enforcing rights of disabled people, is a paper tiger, toothless at that. Recent data suggest that only one percent of Ethiopian buildings and roads are fully accessible to the disabled. Yet accessibility is not only a physical, but also a social, cultural, and political sine qua non—and so a matter of human rights.

Rights of Ethiopia’s disabled have been …

Reform Of Regulation Of Legal Practice In Ethiopia: Does It Improve Access To Justice?, Tewodros Meheret

Northwestern Journal of Human Rights

Legal practice has been one of the focus areas of the reform agenda following the appointment of Abiy Ahmed (PhD) as the new Prime Minister of Ethiopia on April 2, 2018 following the resignation of his predecessor. As a response to public discontent which led to the change in leadership, he promised and commenced sweeping changes. Accordingly, working teams were formed under the Advisory Council organized under the auspice of the Attorney General and one of them has been working on regulation of legal practice. It submitted a draft bill to the Office of the Attorney General months back and …

Why Judicial Independence Fails, Aziz Z. Huq

Northwestern University Law Review

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed …

Discovering Racial Discrimination By The Police, Alison Siegler, William Admussen

Northwestern University Law Review

For decades, it was virtually impossible for a criminal defendant to challenge racial discrimination by the police or prosecutors. This was because in United States v. Armstrong, 517 U.S. 456 (1996), the Supreme Court set an insurmountable standard for obtaining discovery in support of a selective prosecution claim. Equating the roles of prosecutors and law enforcement officers, lower courts applied this same standard to claims alleging racial discrimination by the police. This high standard led courts to deny discovery and stifle potentially meritorious claims. Recently, criminal defendants have initiated a wave of challenges to “fake stash house” operations, in which …

Laypeople As Learners: Applying Educational Principles To Improve Juror Comprehension Of Instructions, Max Rogers

Northwestern University Law Review

The U.S. Constitution enshrines the jury in a sacred space within the American judicial system. Yet there are troubling signs that, notwithstanding their best efforts, jurors struggle to fulfill their duties. In particular, substantial empirical research indicates that jurors struggle to understand and, consequently, to apply the instructions given to them by the judge just prior to deliberations. Various mechanisms have been proposed— and in some cases adopted—to improve jurors’ comprehension of instructions and the quality of the deliberations that follow. Among these are rewriting jury instructions in “plain English,” permitting jurors to take notes and ask questions of witnesses, …

Corporate Law For Good People, Yuval Feldman, Adi Libson, Gideon Parchomovsky

Northwestern University Law Review

This Article offers a novel analysis of the field of corporate governance by viewing it through the lens of behavioral ethics. It calls for both shifting the focus of corporate governance to a new set of loci of potential corporate wrongdoing and adding new tools to the corporate governance arsenal. Behavioral ethics scholarship emphasizes that the large share of wrongdoing is generated by “good people” whose intention is to act ethically. Their wrongdoing stems from “bounded ethicality”—various cognitive and motivational limitations in their ethical decision-making processes—that leads to biased decisions that seem legitimate. Bounded ethicality has important implications for a …

The Promise Of Senior Judges, Marin K. Levy

Northwestern University Law Review

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Journal of Criminal Law and Criminology

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

"Defund The (School) Police"? Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance

Journal of Criminal Law and Criminology

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether that reporting involves referrals to law enforcement agencies matters, particularly as reports may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline …

Rethinking Reverse Location Search Warrants, Mohit Rathi

Journal of Criminal Law and Criminology

The conflict between personal liberty and collective security has challenged Americans throughout the ages. The reverse location search warrant, which provides police officers with the ability to access location information on every smartphone that passes within a certain radius around a crime scene, is the newest chapter in this conflict. This technology is relatively new, but it is slowly being adopted by technologically savvy police departments across the country. While the reverse location search warrant could help officers catch and prevent crimes, the technology comes at the cost of providing police departments with unprecedented access to the location information of …

The Corporate Insanity Defense, Mihailis E. Diamantis

Journal of Criminal Law and Criminology

Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where …

Criminalizing China, Margaret K. Lewis

Journal of Criminal Law and Criminology

The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By June 2020, the Federal Bureau of Investigation had approximately two thousand active investigations under the Initiative.

People and entities with connections to the PRC’s governing party-state structure have engaged in trade secret theft and other crimes under U.S. law. The Department of Justice is not making up a threat. It is, however, framing that threat in a problematic way.

This Article argues that using “China” as the glue connecting cases prosecuted under the Initiative’s umbrella …

The Specific Deterrent Effects Of Criminal Sanctions For Intimate Partner Violence: A Meta-Analysis, Joel H. Garner, Christopher D. Maxwell, Jina Lee

Journal of Criminal Law and Criminology

A dozen systematic reviews published since 1978 have sought to clarify the complexities of deterrence theory. These reviews emphasize the general deterrent effects of police presence, arrest, and incarceration on rates of homicide and other serious crimes, such as assault, rape, and burglary. These reviews provide less attention to specific deterrence processes and to the deterrent impacts of intermediate sanctions, such as prosecution or conviction; none of these reviews incorporate any of the research on criminal sanctions for intimate partner violence. To address these limitations, this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal …

Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, And Violence Against Women In Indian Country, Joseph Mantegani

Journal of Criminal Law and Criminology

Native American women face rates of sexual violence far beyond those experienced by any other race. But when those women live on reservations, their own tribes are restricted in their authority to protect their members. A maze of criminal jurisdiction overlies Indian country, one that depends on the location of the crime, the agreements a particular tribe has with local or federal authorities, the applicable federal jurisdictional statutes, and the offender’s race.

Since Oliphant v. Suquamish Indian Tribe in 1978, tribes have not had criminal jurisdiction over non-Indians who commit crimes on their reservations. Rather, tribes must rely on state …

The Modern Common Law Of Crime, Robert Leider

Journal of Criminal Law and Criminology

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily conventional. That is, …

Defending Constitutional Rights In Imbalanced Courtrooms, Esther Nir, Siyu Liu

Journal of Criminal Law and Criminology

Safeguarding Fourth Amendment protections is critical to preserving individual privacy rights and fostering positive perceptions of police legitimacy within communities. Maintaining an effective accountability structure for police stops, searches, and seizures is a necessary step toward achieving these objectives. In this article, we use qualitative interviews and survey data with defense attorneys to explore—from a court community perspective— their use of discretion to uphold the Exclusionary Rule through bringing suppression motions. Data demonstrate that power dynamics within the court community lead defense attorneys to conclude that litigating rights violations is often a futile effort that interferes with favorable case outcomes …

Regional International Juvenile Incarceration Models As A Blueprint For Rehabilitative Reform Of Juvenile Criminal Justice Systems In The United States, Robert Laird

Journal of Criminal Law and Criminology

Adolescence marks a unique and transformative time in a person’s physical, emotional, and intellectual development and requires special considerations in the realm of criminal justice. This Comment explores how rehabilitative models of criminal justice are better suited than punitive models to recognize and accommodate the intricacies and special factors inherent in juvenile delinquency and uses examples from regional international bodies to illustrate how the United States can adopt measures that align with modern-day neurology and psychiatry. First, this Comment explores the unique characteristics of juvenile offenders as adolescent, semi-autonomous individuals who are more likely to be incompetent to stand trial …

Capital Felony Merger, William M. Berry Iii

Journal of Criminal Law and Criminology

Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices. This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” …

Missing The Misjoinder Mark: Improving Criminal Joinder Of Offenses In Capital-Sentencing Jurisdictions, Milton J. Hernandez Iv

Journal of Criminal Law and Criminology

In all state and federal jurisdictions in the United States, joinder allows prosecutors to join multiple offenses against a criminal defendant. Joinder pervades the American criminal justice system, and some jurisdictions see joinder in more than half of their cases. Most states and the federal courts use a liberal joinder system where courts may join offenses regardless of their severity or punishment. These systems derive from judicial efficiency arguments, seeking to avoid unnecessary trials and striving to conserve time, money, and other resources. In a liberal joinder regime, the court may force a defendant to prepare for a trial in …

Minding The Gap In Domestic Violence Legislation: Should States Adopt Course Of Conduct Laws?, Teresa Manring

Journal of Criminal Law and Criminology

In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several …

Toward A More Perfect Trial: Amending Federal Rules Of Evidence 106 And 803 To Complete The Rule Of Completeness, Louisa M. A. Heiny, Emily Nuvan

Journal of Criminal Law and Criminology

The common law Rule of Completeness was designed to prevent parties from introducing incomplete—and thereby misleading—statements at trial. It ensured fundamental fairness by ensuring that a fact finder heard an entire statement or series of statements if the whole would “complete” the partial evidence presented. It served this important role in Anglo-American jurisprudence for centuries before the drafters of Federal Rule of Evidence 106 attempted to capture its essence in 1975. Unfortunately, what was once a simple and principled rule has been muddled by Federal Rule of Evidence 106 (FRE 106). The common law rule language was lost when FRE …

Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder

Journal of Criminal Law and Criminology

Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such …

Breonna Taylor: Transforming A Hashtag Into Defunding The Police, Jordan Martin

Journal of Criminal Law and Criminology

How can modern policing be reformed to address police violence against Black women when it can occur at no fault of their own and end with a shower of bullets in the middle of the night while within the sanctity of their own home? What is accomplished when her name is said but justice is never achieved? What good does it do when her story is subsequently overshadowed or overlooked by the reform movements that intend to correct racism and sexism respectively? This Comment analyzes both Black women’s vulnerability to police violence and their invisibility in reform movements. First, police …

Peremptory Challenges: Preserving An Unequal Allocation And The Potential Promise Of Progressive Prosecution, Savanna R. Leak

Journal of Criminal Law and Criminology

In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the …