Law Commons^™

A Good Name: Applying Regulatory Takings Analysis To Reputation Damage Caused By Criminal History, Jamila Jefferson-Jones

West Virginia Law Review

No abstract provided.

Flawed Forensics And The Death Penalty: Junk Science And Potentially Wrongful Executions, Jessica Dwyer-Moss

Seattle Journal for Social Justice

No abstract provided.

Prosecutorial Decriminalization, Erik Luna

Erik Luna

The article discusses the legal concept of prosecutorial decriminalization in the U.S. as of July 2012, focusing on an analysis of the use of criminal laws to enforce the public standards of morality in America. Penal codes and criminal sanctions are addressed, along with several reform measures aimed at restructuring a criminal law system in the U.S. which has reportedly been overburdened by overcriminalization. The use of the American judiciary system as a check on overcriminalization is mentioned.

A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Teaching 'The Wire': Fiction As Pedagogical Tool, Roger Fairfax

Presentations

No abstract provided.

Victim Impact Evidence: An Analysis On The Effect Of Victim Impact Evidence On The Sentencing Stage In Death-Penalty Cases And Potential Reforms, Kyle W. Kahan

Kyle W Kahan

No abstract provided.

Searching For Solutions To The Indigent Defense Crisis In The Broader Criminal Justice Reform Agenda, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, …

Probable Cause On A Leash, Taylor D. Phipps

Taylor D Phipps

This article develops in four parts. Part II of this article explores the historical evolution of Supreme Court caselaw and the Court’s recent decision in Florida v. Harris.[1] This article attempts to enlighten the Court’s standard in Harris by looking to prior caselaw and discusses why courts should interpret the holding in a way that allows defendants to challenge the legitimacy and accuracy of training and certification programs. If applied incorrectly, Harris will violate the Fourth Amendment and allow searches to occur on less than probable cause. Part III reviews the fallibility of drug detection dogs and the diversity …

The Mental Element Of The Crime Of Genocide, Devrim Aydin

devrim aydin

No abstract provided.

Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of …

Oppositional Politics In Criminal Law And Procedure, Janet Moore

Janet Moore

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism, deterrence, and rehabilitation by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments across movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Part III turns that theoretical lens on …

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …

Mistreating A Symptom: The Legitimizing Of Mandatory, Indefinite Commitment Of Insanity Acquittees - Jones V. United States, Paul S. Avilla

Pepperdine Law Review

At the end of the 1982 term, in Jones v. United States, the United States Supreme Court upheld a District of Columbia statute requiring the automatic and indefinite commitment of persons acquitted by reason of insanity. While under the D.C. statute the acquittee is periodically given the opportunity to gain release, the practice of involuntarily confining someone who has been acquitted raises serious due process and equal protection issues. This note examines the Court's analysis of these issues, focusing on a comparison of the elements necessary for an insanity defense with the showing required by the due process clause for …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

Thompson V. Oklahoma: Debating The Constitutionality Of Juvenile Executions, Susan M. Simmons

Pepperdine Law Review

No abstract provided.

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

Understanding Immigration: Satisfying Padilla's New Definition Of Competence In Legal Representation, Yolanda Vazquez

Faculty Articles and Other Publications

Panel Discussion on Padilla v. Kentucky.

Toward A Common Law Of Plea Bargaining, Wesley Macneil Oliver

Kentucky Law Journal

No abstract provided.

Amicus Brief: State V. Glover (Maine Supreme Judicial Court), Adam Lamparello, Charles Maclean

Adam Lamparello

When law enforcement seeks to obtain a warrantless, pre-arrest DNA sample from an individual, that individual has the right to say “No.” If silence is to become a “badge of guilt,” then the right to silence—under the United States and Maine Constitutions—might become a thing of the past. Allowing jurors to infer consciousness of guilt from a pre-arrest DNA sample violates the Fourth Amendment to the United States and Maine Constitutions.

Public Choice Theory And Overcriminalization, Paul J. Larkin Jr.

Paul J Larkin Jr.

“Overcriminalization” is a neologism used to describe the overuse and misuse of the criminal law, oftentimes to punish conduct that society traditionally would not deem morally blameworthy. Overcriminalization is less a problem with the substantive criminal law than it is with the lawmaking process. Each new criminal law or sentence enhancement may be eminently sensible on its own, but may turn out to be utterly unreasonable when considered against the background of laws already on the books. In economic terms, the marginal benefit of each new criminal law may be nil, yet the marginal cost that each one imposes could …

Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber

Publications

No abstract provided.

Mens Rea In Minnesota And The Model Penal Code, Ted Sampsell-Jones

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

When Minnesota engaged in the great reform and recodification effort that led to the Criminal Code of 1963, it was part of a nationwide reform movement. That movement was spurred in large part by the American Law Institute and its Model Penal Code. The Minnesota drafters were influenced by the MPC, and at least in some areas, adopted MPC recommendations.

The MPC’s most significant innovation was in the law of mens rea—the body of law concerning the mental state or “guilty mind” necessary for criminal liability. The MPC drafters recognized that the common law of mens rea was fundamentally incoherent …

Beyond “Life And Liberty”: The Evolving Right To Counsel, John D. King

Scholarly Articles

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The …

Freeing Morgan Freeman: Expanding Back-End Release Authority In American Prisons, Frank O. Bowman Iii

Faculty Publications

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific. First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus. Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on …

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Publications

Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. . . . [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the …

Introductory Note To Prosecutor V. Germain Katanga: Judgment On The Appeal Against The Decision Of Trial Chamber Ii Of 21 November 2012 (Int'l Crim. Ct.), Steven Arrigg Koh

Faculty Scholarship

The Appeals Chamber of the International Criminal Court (ICC) in the case of Prosecutor v. Germain Katanga held that a Trial Chamber, during the deliberations stage of trial proceedings, may, pursuant to Regulation 55 of the Regulations of the Court (Regulation 55), give notice of a possible modification of the legal characterization of the facts in its final Judgment, so long as the trial remains fair. This Introductory Note will provide background on the Katanga case and Regulation 55, summarize the Appeals Chamber's Judgment, and discuss the implications of this ruling.

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …