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Articles 1 - 30 of 53
Full-Text Articles in Law
Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman
Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman
Duke Journal of Constitutional Law & Public Policy Sidebar
In 1995, Kansas, along with a small number of other states, passed a statute abrogating the widely recognized common law insanity defense. At common law, a defendant could raise the defense when a mental illness impaired his ability to distinguish right from wrong, allowing him to escape liability even when the elements of the crime were otherwise fulfilled. However, under Kansas’ statutory scheme, evidence of a defendant’s mental illness can only be used to negate the mens rea element of the offense. In other words, evidence of mental illness is only relevant when it shows that the defendant lacked the …
The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding
The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding
Faculty Scholarship
Policymakers have often been explicit in expanding statutory rape laws to reduce teenage pregnancies and live births by teenage mothers, often with the goal of reducing associated welfare outlays. In this paper, we explore whether expansions in such laws are indeed associated with reductions in teen birth rates. In order to codify statutory-rape-law expansions, we use a national micro-level sample of sexual encounters to simulate the degree to which such encounters generally implicate the relevant laws. By codifying statutory-rape laws in terms of their potential reach into sexual encounters, as opposed to using crude binary treatment variables, this simulation approach …
Culpability And Modern Crime, Samuel W. Buell
Culpability And Modern Crime, Samuel W. Buell
Faculty Scholarship
Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …
“White Collar” Crimes, Samuel W. Buell
“White Collar” Crimes, Samuel W. Buell
Faculty Scholarship
In addition to serving as a précis of the subject of ‘white collar’ crime, this chapter does three things. First, it deals with white collar crime’s longstanding definitional problem, rejecting several standard approaches and arguing that the category is most usefully understood according to the conceptual legal problem these offenses generate. White collar crimes, much more than other offenses, are committed in social settings in which undesirable behaviors are embedded within socially welcome conduct. Thus they are difficult to set apart and extract through clearly specified ex ante rules of law. Second, the chapter illustrates this definitional claim, and discusses …
Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale
Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale
Faculty Scholarship
What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. …
The Story Of Ewing: Three Strikes Laws And The Limits Of The Eighth Amendment Proportionality Review, Sara Sun Beale
The Story Of Ewing: Three Strikes Laws And The Limits Of The Eighth Amendment Proportionality Review, Sara Sun Beale
Faculty Scholarship
In 1994 California enacted the nation's harshest "three strikes" law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing …
The Unconstitutionality Of State Regulation Of Immigration Through Criminal Law, Gabriel J. Chin, Marc L. Miller
The Unconstitutionality Of State Regulation Of Immigration Through Criminal Law, Gabriel J. Chin, Marc L. Miller
Duke Law Journal
The mirror-image theory of cooperative state enforcement of federal immigration law is a phenomenon—one of the most wildly successful legal ideas in decades. The mirror-image theory proposes that states can enact and enforce criminal immigration laws that are based on federal statutes. The theory that it is unobjectionable for a state to carry out federal policy is the basis of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act—better known as SB 1070—and similar laws enacted in Alabama, Georgia, Indiana, and Utah. The same theory has provoked the introduction of bills in numerous other states and earlier but more narrowly …
The Federal Common Law Crime Of Corruption, Lisa Kern Griffin
The Federal Common Law Crime Of Corruption, Lisa Kern Griffin
Faculty Scholarship
This contribution to the North Carolina Law Review’s 2010 symposium, Adaptation and Resiliency in Legal Systems, considers the compatibility between the common law nature of honest services fraud and the dynamic quality of public integrity offenses. Corruption enforcement became a focal point of recent debates about over- criminalization because it typifies expansive legislative mandates for prosecutors and implicit delegations to courts. Federal prosecutions of political corruption have relied primarily on an open-textured provision: 18 U.S.C. § 1346, the honest services extension of the mail fraud statute. Section 1346 raises notice concerns because it contains few self-limiting terms, but it has …
Advice And Complicity, Matthew A. Smith
How The Post-Framing Adoption Of The Bare-Probable-Cause Standard Drastically Expanded Government Arrest And Search Power, Thomas Y. Davies
How The Post-Framing Adoption Of The Bare-Probable-Cause Standard Drastically Expanded Government Arrest And Search Power, Thomas Y. Davies
Law and Contemporary Problems
Davies exposes a story that has been almost entirely overlooked: that the now-accepted doctrine that probable cause alone can justify a criminal arrest or search did not emerge until well after the framing of the Bill of Rights in 1789 and constituted a significant departure from the criminal-procedure standards that the Framers of the Bill thought they had preserved.
What Is Probable Cause, And Why Should We Care?: The Costs, Benefits, And Meaning Of Individualized Suspicion, Andrew E. Taslitz
What Is Probable Cause, And Why Should We Care?: The Costs, Benefits, And Meaning Of Individualized Suspicion, Andrew E. Taslitz
Law and Contemporary Problems
Taslitz defines probable cause as having four components: one quantitative, one qualitative, one temporal, and one moral. He focuses on the last of these components. "Individualized suspicion," the US Supreme Court has suggested, is perhaps the most important of the four components of probable cause. That is a position with which he heartily agree. The other three components each play only a supporting role. But individualized suspicion is the beating heart that gives probable cause its vitality.
Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins
Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins
Law and Contemporary Problems
In recent decades, the criminal-justice pendulum has swung to the opposite extreme. Criminal law is often described as covering disputes between the offender and the state. Victims are not direct parties to criminal proceedings, they have no formal right to either initiate or terminate a criminal action, and they have no control over the punishment meted out to offenders. In this state-centric system, victim needs have been left unsatisfied, giving rise to a politically powerful victims' rights movement that has had success in giving victims rights of access to prosecutors and rights to be heard in the courtroom. Here, O'Hara …
The Upside Of Overbreadth, Samuel W. Buell
The Upside Of Overbreadth, Samuel W. Buell
Faculty Scholarship
Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors …
Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, And Law, Brent Garland, Mark S. Frankel
Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, And Law, Brent Garland, Mark S. Frankel
Law and Contemporary Problems
Garland and Frankel issue a call for scientists, lawyers, courts and lawmakers to begin a critical dialogue about the implications of scientific discoveries and technological advances in criminal law, behavioral genetics and neuroscience.
The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen Rothenberg, Alice Wang
The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen Rothenberg, Alice Wang
Law and Contemporary Problems
Rothenberg and Wang discuss the broader social implications of researching traits of interest to the criminal law. They consider the social impact for those who participate in behavioral genetics studies, particularly when such research focuses on behaviors related to conduct such as addiction.
Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse
Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse
Law and Contemporary Problems
In light of the abundance of studies focusing on the genetic contributions to addiction, Morse develops a meaningful background on the legal and scientific images of behavior, the disease concept of addiction, and the aspects of addiction for which a person may be held legally accountable.
The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale
The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale
Faculty Scholarship
No abstract provided.
From The Ne’Er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard E. Harcourt
From The Ne’Er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard E. Harcourt
Law and Contemporary Problems
Harcourt discusses three developments in 20th century criminal law: the evolution of parole board decision-making in the early 20th century, the development of fixed sentencing guidelines in the late 20th century, and the growth of criminal profiling as a formal law enforcement tool since the 1960s. In each of these case studies, he focuses on the criminal law decision-making.
Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones
Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones
Duke Law Journal
No abstract provided.
Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale
Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale
Faculty Scholarship
No abstract provided.
When Does An Unsafe Act Become A Crime?, Charles J. Dunlap Jr.
When Does An Unsafe Act Become A Crime?, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.
The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy
The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy
Law and Contemporary Problems
Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in "Strickland" has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. Murphy reviews the right to counsel and discusses the crucial role of counsel in capital cases throughout the trial and appellate processes.
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
The Canadian Criminal Jury: Searching For A Middle Ground, Neil Vidmar
The Canadian Criminal Jury: Searching For A Middle Ground, Neil Vidmar
Law and Contemporary Problems
Vidmar discusses the history of the Canadian jury and develops a profile of the Canadian jury today. The law and rationale behind the procedures involved in the "Bernardo" trial are also described.
The Scottish Criminal Jury: A Very Peculiar Institution, Peter Duff
The Scottish Criminal Jury: A Very Peculiar Institution, Peter Duff
Law and Contemporary Problems
Duff describes and discusses the Scottish criminal jury. While the exact origins of the Scottish criminal jury are obscure, it is clear that it developed in tandem with, although in a different fashion from, its English counterpart.
Criminal Trial Juries In Australia: From Penal Colonies To A Federal Democracy, Michael Chesterman
Criminal Trial Juries In Australia: From Penal Colonies To A Federal Democracy, Michael Chesterman
Law and Contemporary Problems
The recent history of juries in Australia reveals an interesting clash between the endeavours of state and territory governments to reduce the costs associated with jury trial by various means and the determination of the High Court of Australia to reassert the traditional values and features of jury trial.
The New Zealand Jury, Neil Cameron, Susan Potter, Warren Young
The New Zealand Jury, Neil Cameron, Susan Potter, Warren Young
Law and Contemporary Problems
In New Zealand, the recent history of the jury has been one of fairly steady decline. This is particularly so of the civil jury, which has become virtually extinct with little realistic prospect of revival.
The Jury System In Contemporary Ireland: In The Shadow Of A Troubled Past, John D. Jackson, Katie Quinn, Tom O'Malley
The Jury System In Contemporary Ireland: In The Shadow Of A Troubled Past, John D. Jackson, Katie Quinn, Tom O'Malley
Law and Contemporary Problems
Jackson et al discuss the distinctive features of criminal trial by jury in Ireland, both north and south, to explain how the jury continues to survive within modern Ireland and how it also has managed to decline in significance.
Reviving The Criminal Jury In Japan, Lester W. Kiss
Reviving The Criminal Jury In Japan, Lester W. Kiss
Law and Contemporary Problems
Kiss analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal and legal viewpoints in light of Japan's prior experience with a jury system.
The American Criminal Jury, Nancy Jean King
The American Criminal Jury, Nancy Jean King
Law and Contemporary Problems
King describes the American criminal jury, focusing on those aspects of the institution that distinguish it from juries in other parts of the world.