Law Commons^™

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The first part of this Essay explores the authors' findings, which do not fit as neatly into mainstream thinking about indigent defense representation as the authors suggest. The study's dramatic findings appear to stem from a counterintuitive form of professional competence: aptitude at convincing one's client to plead guilty.6 As discussed below, skill at obtaining a client's waiver of his constitutional right to a jury trial is not the traditional model of effective representation. If modem defense attorney competence primarily manifests in this manner, the implications for indigent defense and criminal justice generally are more revolutionary than the study's authors …

Time To Unpack The Juggernaut?: Reflections On The Canadian Federal Parliamentary Debates On "Cyberbullying", Jane Bailey

Dalhousie Law Journal

Cyberbullying has come to the fore in federal parliamentary debate largely in the last two years in tandem with high profile media reporting of several teen suicides. The government responded with the Protecting Canadians from Online Crime Act that incorporates, among other things, criminal law responses to nonconsensual distribution of intimate images and gender-based hate propagation, but only at the expense of expanded state surveillance. However, a review of the parliamentary debates reveals a richer array of approaches in which the efficacy of criminal law responses was contested. This article reports on the diversity of viewpoints that emerged within the …

Combating Cyber-Victimization, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Advice For Ferguson From The Supreme Court, Sonja R. West, Dahlia Lithwick

Popular Media

This article looks at the factors regarding protestors and counselors set forth in the Supreme Court's decision in McCullen v. Coakley and puts them in the Ferguson, Missouri context.

Teaching The Wire: Crime, Evidence And Kids, Andrea L. Dennis

Journal of Legal Education

No abstract provided.

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Journal of Legal Education

No abstract provided.

The Pedagogy Of Rape Law: Objectivity, Identity And Emotion, Jennifer M. Denbow

Journal of Legal Education

No abstract provided.

Teaching Fiction?: The Wire As A Pedagological Tool In The Examination Of Punishment Theory, Kristin Henning

Journal of Legal Education

No abstract provided.

Hbo's The Wire And Criminal Procedure: A Match Made In Heaven, Brian R. Gallini

Journal of Legal Education

No abstract provided.

Is There A Remedy For The Irrelevance Of Academic Criminal Law?, Franklin E. Zimring

Journal of Legal Education

No abstract provided.

The Experiential Sabbatical, Martin H. Pritikin

Journal of Legal Education

No abstract provided.

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger A. Fairfax Jr.

Journal of Legal Education

No abstract provided.

Teaching Scholarship Through A Seminar On The Wire, Josephine Ross

Journal of Legal Education

No abstract provided.

The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders, Johnna Preble

Montana Law Review

The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders

Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence, Kelly M. Driscoll

Montana Law Review

Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

"Stand Your Ground" In Context: Race, Gender, And Politics, Donna Coker

University of Miami Law Review

No abstract provided.

Abstract Risk And The Politics Of The Criminal Law, Brenner M. Fissell

Faculty Publications

Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must …

The System Of Modern Criminal Conspiracy, Steven R. Morrison

Catholic University Law Review

No abstract provided.

The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law? , Michael Vitiello

Nevada Law Journal

No abstract provided.

The Punishment Should Fit The Crime—Not The Prior Convictions Of The Person That Committed The Crime: An Argument For Less Impact Being Accorded To Previous Convictions, Mirko Bagaric

San Diego Law Review

The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders …

Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Yes, We Were Wrong;No, We Will Not Make It Right: The Seventh Circuit Denies Post-Conviction Relief From An Undisputed Sentencing Error Because It Occurred In The Post- Booker, Advisory Guidelines Era, Gregory S. Dierdorf

Seventh Circuit Review

Federal courts disfavor granting collateral relief from final criminal judgments. This mentality is premised on a need for finality in the criminal process; the idea that, at some point, a criminal case must come to an end. Post-conviction relief is available, however, where an error in the trial court causes a miscarriage of justice that must be remedied to preserve the integrity of the criminal justice system.

For example, the Seventh Circuit has granted post-conviction relief where the sentencing court miscalculated the defendant's prison sentence by misapplying the career offender-sentencing enhancement under the then-binding Federal Sentencing Guidelines. However, the court …

Don't Break The Safety Valve's Heart: How The Seventh Circuit Superimposes Substantial Assistance On The Mandatory Minimum Safety Valve's Complete Truthful Disclosure Requirement, Adrienne N. Kitchen

Seventh Circuit Review

Congress passed the safety valve to mitigate the disparate and often harsh sentences mandatory minimums impose on low-level drug defendants. But judicial interpretation continues to impose disparate sentences. In 2014, in United States v. Acevedo-Fitz, the Seventh Circuit reaffirmed its position in an ongoing circuit split regarding the safety valve. The safety valve requires defendants to meet five criteria, the fifth—sometimes called the heart of the safety valve—requires defendants provide complete truthful disclosure to prosecutors prior to sentencing. Judges interpret this requirement as imposing a burden on defendants to prove they met all five criteria without requiring the government …

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

West Virginia Law Review

No abstract provided.

Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property …

Empirical Desert And Preventive Justice: A Comment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay is a response to an article by Paul Robinson, Joshua Barton, and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in Its Place, which was itself an analysis of several works published by Robinson and various coauthors making the case for "empirical desert." Robinson's suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on …

The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.

Scholarly Works

A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction …