Criminal Law Commons^™

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

Deep Background: Journalists, Sources, And The Perils Of Leaking, William E. Lee

American University Law Review

No abstract provided.

Reforming Fourth Amendment Privacy Doctrine, Jim Harper

American University Law Review

No abstract provided.

An Evaluation Of The Need For And Functioning Of The Federal Sentencing Guidelines In The United States And Nigeria, Victoria T. Kajo

Cornell Law School Inter-University Graduate Student Conference Papers

The United States Federal Sentencing Guidelines, in use since 1987, was set up to reduce disparity in sentencing and its application was made mandatory. Though there are a few who are in favor of the guidelines, the guidelines as mandatory have been severely criticized and many have called for their abolition. Consequently, in the twin cases of United States v. Booker and United States v. Fanfan (2005) 125 S.Ct. 738, the US Supreme Court delivered judgment that had the effect of making the guidelines discretionary.

While the Nigerian legal system shares a Common Law background with the United States, Nigeria …

The Right Ones For The Job: Divining The Correct Standard Of Review For Curtilage Determinations In The Aftermath Of Ornelas V. United States, Jake Linford

Scholarly Publications

No abstract provided.

Rethinking Child Advocacy After Roper V. Simmons: "Kids Are Just Different" And "Kids Are Like Adults" Advocacy Strategies, Elisa Poncz

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between two competing arguments in juvenile law: "kids are just different" and "kids are like adults." It critiques the binary approach often used in child advocacy and proposes a more nuanced, patchwork strategy that combines both perspectives to better serve the diverse needs of juveniles. The analysis focuses on key legal contexts, including the death penalty, life without parole, and minors' rights in medical decision-making, education, and internet access. The author argues that a balanced approach is essential to address the complexities of juvenile rights and responsibilities.

The Politicization Of The Designation Of Foreign Terrorist Organizations: The Effect On The Separation Of Powers, Julie B. Shapiro

Cardozo Public Law, Policy & Ethics Journal

The article critiques the U.S. process for designating foreign terrorist organizations (FTOs) under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and subsequent amendments, arguing that the concentration of power in the Executive Branch undermines the separation of powers and risks politicization. The process, while intended to deter terrorism, often lacks transparency, adequate oversight, and judicial scrutiny, leading to potential misuse and unintended consequences, such as radicalizing targeted groups. The author advocates for reforms to restore constitutional principles and ensure the process remains effective and legitimate.

Missing Privacy Through Individuation: The Treatment Of Privacy Law In The Canadian Case Law On Hate, Obscenity, And Child Pornography, Jane Bailey

Dalhousie Law Journal

Privacy is approached differently in the Canadian case law on child pornography than in hate propaganda and obscenity cases. Privacy analyses in all three contexts focus considerable attention on the interests of the individuals accused, particularly in relation to minimizing state intrusion on private spheres of activity However, the privacy interests of the.equality-seeking communities targeted by these forms of communication are more directly addressed in child pornography cases than in hate propaganda and obscenity cases. One possible explanation for this difference is that hate propaganda and obscenity simply do not affect the privacy interests of targeted groups and their members. …

Are Journalists Privileged?: Panel Discussion, Anthony Lewis, Max Frankel, Victor Kovner

Cardozo Law Review

No abstract provided.

Implementation Of The U.S. Department Of Justice’S Special Counsel Regulations: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 110th Cong., Feb. 26, 2008 (Statement Of Professor Neal Kumar Katyal, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.

Arbitrary And F^@#$*! Capricious: An Analysis Of The Second Circuit's Rejection Of The Fcc's Fleeting Expletive Regulation In Fox Television Stations, Inc. V. Fcc (2007), Justin Winquist

American University Law Review

No abstract provided.

Beyond A Conceivable Doubt: The Quest For A Fair And Constitutional Standard Of Proof In Death Penalty Cases, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

The death penalty remains the most contentious issue in criminal law jurisprudence, and continues to be challenged on both constitutional and moral grounds. What is most remarkable about American death penalty jurisprudence is that it has traditionally focused on purely technical and procedural aspects of the imposition of the death penalty, despite the fact that the most vulnerable plank in the arsenal of death penalty defenders is evidence that innocent people have been, and will continue to be, executed. Perhaps no legal principle is more difficult to explain to the layman or first-year law student than that of all the …

The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson

Scholarly Articles

Although there is no recipe for defining Fourth Amendment reasonableness, the Supreme Court produces its most anomalous Fourth Amendment outcomes when it decides "mixed" questions of reasonableness, assessing issues that turn on how ordinary, prudent citizens think and behave. The Court treats these mixed issues, combinations of fact and law, as if they raise purely legal questions. But mixed issues are more complex and require someone to determine historical facts, apply those facts to principles of Fourth Amendment law, and consider the totality of the circumstances, including taking into account community and cultural influences. The Supreme Court will take its …

Material Support To Terrorists Or Terrorist Organizations: Asylum Seekers Walking The Relief Tightrope , Craig R. Novak

The Modern American

No abstract provided.

Presumptions, Inferences, And Strict Liability In Illinois Criminal Law: Preempting The Presumption Of Innocence?, 41 J. Marshall L. Rev. 715 (2008), Theodore A. Gottfried, Peter G. Baroni

UIC Law Review

No abstract provided.

Criminal And Sentencing Law Review Commissions: Detached, Contemplative Decision Making On Matters Of Criminal Justice Reform, 41 J. Marshall L. Rev. 777 (2008), John J. Cullerton, Kirk W. Dillard, James B. Durkin, Robert S. Molaro, Peter G. Baroni

UIC Law Review

No abstract provided.

Reforming The Illinois Criminal Code: Where The Clear Commission Stopped Short Of Its Goals, 41 J. Marshall L. Rev. 741 (2008), Terri L. Mascherin, Andrew Vail, Jennifer L. Dlugosz

UIC Law Review

No abstract provided.

"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth

UIC Law Review

No abstract provided.

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

Sex Offender Registration And Community Notification Policy: Past, Present, And Future, Wayne A. Logan

Scholarly Publications

Based on a keynote address delivered in conjunction with the Journal's annual symposium, this paper examines several of the major legal and policy issues associated with sex offender registration and community notification laws. Particular attention is dedicated to the Adam Walsh Act, a federal law enacted in July 2006 that continues efforts by Congress to foster changes in state registration and notification regimes as a result of its Spending Clause authority. In addition to discussing the federalism implications of the AWA, the paper examines several of its most significant provisions, including those calling for empirical assessment of registration and community …

No Compensation For Slave Traders: Some Implications, 14 Tex. Wesleyan L. Rev. 289 (2008), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Straddling The Civil-Criminal Divide: A Bifurcated Approach To Understanding The Nature Of Immigration Removal Proceedings, Peter L. Markowitz

Articles

The article challenges the traditional classification of removal proceedings as civil, arguing that expulsion, particularly for permanent residents, functions similarly to criminal punishment and should therefore be treated as criminal. It proposes a bifurcated approach distinguishing exclusion and expulsion, advocating for criminal protections in expulsion proceedings to align with historical and constitutional principles.

"Saturday Night's Alright For Fighting": Congressman William Jefferson, The Saturday Night Raid, And The Speech Or Debate Clause, James W. Mcphillips

Georgia Law Review

On May 20, 2006, for the first time in U.S. history, federal agents executed a search warrant in raiding the Capitol Hill office of a sitting member of Congress. The raid was the culmination of a fourteen month corruption and bribery investigation into Representative William J. Jefferson's business dealings in Africa. Supported by bipartisan outcry, Jefferson sought the return of the documents seized in the raid under the legislative immunity protection of the Speech or Debate Clause. In United States v. Rayburn House Office Building, the D.C. Circuit agreed with Jefferson that the FBI violated his constitutional rights and granted …

Habeas Corpus Law In The Ninth Circuit After Mendoza V. Carey: A New Era?, Jay W. Spencer

Seattle University Law Review

After a brief review in Part II of the current habeas corpus appeals practice following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),9 Part III of this Note will examine the factual and procedural history of Mendoza. Next, Part IV will analyze the case's majority and dissenting opinions. Finally, Part V contrasts Mendoza with factually similar cases in other jurisdictions and demonstrates that, even though the Ninth Circuit stands alone, its ruling strikes a proper balance between limiting abuse of the writ and ensuring that it remains available to all inmates who diligently pursue …

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

UF Law Faculty Publications

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Crawford, Retroactivity, And The Importance Of Being Earnest, J. Thomas Sullivan

Law Faculty Scholarship

In this article Professor Sullivan examines the Supreme Court's evolving Confrontation Clause jurisprudence through its dramatic return to pre-Sixth Amendment appreciation of the role of cross-examination in the criminal trial reflected in its 2004 decision in Crawford v. Washington. He discusses the past quarter century of the Court's confrontation decisions and their impact on his client, Ralph Rodney Earnest, recounting the defendant's conviction and twenty-four-year litigation journey through state and federal courts to his eventual release from prison in the only successful attempt to use Crawford retroactively known to date.

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Rehabilitating Juvenile Sex Offenders With A Life Sentence, 42 J. Marshall L. Rev. 187 (2008), Adam Doeringer

UIC Law Review

No abstract provided.

Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto

Washington International Law Journal

Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or “hybrid court,” to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government’s primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that …