Law Commons^™

Reclaiming The Equitable Heritage Of Habeas, Erica J. Hashimoto

Scholarly Works

Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these …

The Illustrated Guide To Criminal Law, Rebecca Mattson

Law Library Faculty Works

No abstract provided.

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

Presentations

No abstract provided.

Contextualizing Legitimacy, Kish Vinayagamoorthy

Scholarly Articles

The article discusses the effects of jurisprudential values on the responsibility to prevent and the relationship between the State sovereignty and the responsibility of the State to prevent its citizens from crime. It evaluates how international law can facilitate the implementation of the responsibility to prevent. It emphasizes that international lawyers and academics should consider the qualities that define law and distinguish legal norms and social norm from principles of society.

Rage Against The Machine: A Reply To Professors Bierschbach And Bibas, Erik Luna

Scholarly Articles

The article presents a response to the article by Professor Albert Alschuler on the administrative rulemaking in criminal law enforcement and guiding the power which was wielded by criminal justice officials. It mentions that the increase in the rate of the punishment given to the convicts is less effective in reducing the crime and enhancing public safety. It informs that bureaucratization can be considered as the means to improve the criminal process in the U.S.

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, …

Vol. 4 No. 2, Spring 2013; The “Cowardly Counsel” Exception: Eliminating The Contemporaneous Objection Rule, Elizabeth George

Northern Illinois Law Review Supplement

The contemporaneous objection rule is very clear and precise in its application. However, as the law stands in the Ninth Circuit, failure to contemporaneously object coupled with any mention of race by the sentencing judge is automatic grounds for resentencing. This article explores the origins of this exception to the contemporaneous objection rule. Next, it explores why these statements constitute harmless error on the part of the trial court. Finally, it explains why this “cowardly counsel” exception could have potentially devastating effects to the policies that underlie the contemporaneous objection rule.

Justice For War Criminals: The Trials Of Nazi Concentration Camp Guards At Dachau, Jarrid Trudeau

Honors Projects in History and Social Sciences

This paper will seek to explore whether or not Nazi war criminals tasked with manning and staffing the various concentration and death camps were in any way entitled to due process of law upon their capture and trial. This concept is debated among international Holocaust scholars and often discussed with purely apodictic arguments based upon a lack of understanding of military law. This paper will discuss in detail the rights, liberties, and treatment of Nazi war criminals after World War II in relation to the trials of concentration camp guards. It will also necessarily explore and explicate the misunderstood military …

Two Truths And A Lie: Stories At The Juncture Of Teen Sex And The Law, Michelle Oberman

Faculty Publications

Laws governing adolescent sexuality are incoherent and chaotically enforced, and legal scholarship on the subject neither addresses nor remedies adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about adolescent sexuality from both the academic literature and the adults who control the criminal justice response to such interactions. This article presents an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen-year-olds. Using this case, I explore the implications of the prosecution by interviewing a variety of experts and analyzing the …

Overcharging, Kyle Graham

Faculty Publications

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various …

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 …

Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp

All Faculty Scholarship

The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of …

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.

Patent Infringement As Criminal Conduct, Jacob S. Sherkow

Articles & Chapters

Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the …

More Than A "Quick Glimpse Of The Life": The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome E. Deise, Raymond Paternoster

Faculty Scholarship

In striking down the use of victim impact evidence (VIE) during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

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

Publications

No abstract provided.

Getting Beyond Intuition In The Probable Cause Inquiry, Erica R. Goldberg

Journal Articles

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability …

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 …

A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ‘disease’ or ‘moral weakness’. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ‘translated’ into the law’s folk …

White Collar Over-Criminalization: Deterrence, Plea Bargaining, And The Loss Of Innocence, Lucian E. Dervan

Law Faculty Scholarship

Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available …

Pleading Innocents: Laboratory Evidence Of Plea Bargaining's Innocence Problem, Vanessa Edkins, Lucian E. Dervan

Law Faculty Scholarship

We investigated plea bargaining by making students actually guilty or innocent of a cheating offense and varying the sentence that they would face if found ‘guilty’ by a review board. As hypothesized, guilty students were more likely than innocent students to accept a plea deal (i.e., admit guilt and lose credit; akin to accepting a sentence of probation) (Chi-square=8.63, p<.01) but we did not find an effect of sentence severity. Innocent students, though not as likely to plead as guilty students, showed an overall preference (56% across conditions) for accepting a plea deal. Implications and future directions are discussed.

The Innocent Defendant’S Dilemma: An Innovative Empirical Study Of Plea Bargaining’S Innocence Problem, Lucian E. Dervan, Vanessa Edkins

Law Faculty Scholarship

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the …

Fifty State Survey Of Criminal Laws Prohibiting Sexual Abuse Of Individuals In Custody, Brenda V. Smith

The Project on Addressing Prison Rape - Surveys

This document provides information regarding enacting state, statute number, statute title, coverage, definition and notes, penalties, and defenses (if given) for criminal laws prohibiting sexual abuse of inmates by staff.

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 …

The Loeb And Leopold Trial, Daniel Hanson

A with Honors Projects

In 1924, Nathan Leopold, Jr., and Richard Loeb, two privileged and intelligent students from the University of Chicago, initiated a plan to kidnap and hold for ransom a boy from a wealthy neighboring family, all the while intending to kill him. The sensational trial that followed, in which Clarence Darrow delivered a 12-hour closing argument for life imprisonment rather than the death penalty, would have implications far broader than the crime itself. This trial became the focus of the nascent culture war brewing in the 1920’s, a culture war that pitted radically different philosophies against each other in a battle …

The Mens Rea Of The Crime Of Aggression, Noah Weisbord

Faculty Publications

This article, written in commemoration of the tenth anniversary of the International Criminal Court (ICC), explores the mens rea of the crime of aggression. The definition and jurisdictional conditions of the crime of aggression was recently incorporated into the ICC’s Rome Statute, thereby reviving a crime used during the Nuremberg trials to prosecute Nazi leaders after World War II. Mens rea is an important, even central, consideration when judging whether a defendant has satisfied all of the elements of the crime of aggression.

The starting point for this exploration of the mens rea of the crime of aggression is its …

Defunding State Prisons, W. David Ball

Faculty Publications

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there. This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making …

The Dilemma Of Piratical Ransoms: Should They Be Paid Or Not: On The Human Rights Of Kidnapped Seamen And Their Families, Barry H. Dubner, Kimberly Chavers

Faculty Scholarship

No abstract provided.

Online Mental Disability Law Education, A Disability Rights Tribunal, And The Creation Of An Asian Disability Law Database: Their Impact On Research, Training And Teaching Of Law, Criminology Criminal Justice In Asia, Michael L. Perlin, Heather Ellis Cucolo, Yoshikazu Ikehara

Articles & Chapters

Two professors at New York Law School (NYLS) and the director of the Tokyo Advocacy Law Office are engaged in initiatives with the potential to have major influences on the study of law, criminology, and criminal justice: the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP), and expansion of NYLS’s online mental disability law program (OMDLP) to include numerous Asian venues.

DRTAP seeks to create a sub-regional body (a Commission and eventually a Court) to hear violations of the UN’s Convention on the Rights of Persons with Disabilities. This will explicitly inspire scholarship about issues such …