Criminal Law Commons^™

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Inovasi Kolaboratif Dalam Pembentukan Peraturan Perundang-Undangan: Optimalisasi Teknologi Untuk Meningkatkan Partisipasi Publik Dalam Legislasi, Hermawan Prasojo

Jurnal Hukum & Pembangunan

Meaningful public participation in the legislative process in Indonesia is a fundamental element in fostering an inclusive and transparent democracy. Despite the legal mandate for public involvement, as outlined in Law No. 13 of 2022 and Constitutional Court Decision No. 82/PUU-XXI/2023, such participation often remains formalistic and limited in practice. This article highlights the potential of digital technology, particularly the concept of CrowdLaw, as an alternative approach to enhancing public engagement. Case studies from Estonia, Iceland, and Brazil demonstrate that digital participation can effectively increase public involvement and improve the quality of legislative outcomes. With sufficient infrastructure and improved …

Isaac Mwanza And Zambia Civil Liberties Union (Zclu) V The Attorney General 2024/Ccz/008, Emmanuel Banda

SAIPAR Case Review

This contribution considers Isaac Mwanza and Zambia Civil Liberties Union (ZCLU) v Attorney General, a case challenging the constitutionality of longstanding penal provisions criminalising same-sex relations. The author takes issue with the Constitutional Court’s refusal to entertain the matter on jurisdictional grounds, arguing that it misconstrued the relationship between Articles 28 and 128 of the Constitution. By deferring entirely to the High Court on Bill of Rights issues, the author contends, the Constitutional Court has left a significant gap: legislation that may violate fundamental rights now lacks a clear constitutional forum for challenge. The piece underscores a persistent ambiguity in …

Development And Practice Of Tribal Community Planning: Ensuring Indigeneity In The Planning Process, Jared E. Munster, Ph.D.

American Indian Law Journal

No abstract provided.

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

Case Law On American Indians: September 2023 - August 2024, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Innocence And Habeas Corpus: A Call For Equitable Reforms, Paige Skousen Nelson

BYU Law Review

Congress intended the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to codify the Burger and Rehnquist Courts’ habeas corpus jurisprudence, which aimed to establish finality and innocence as gatekeepers to the “Great Writ.” But in practice, AEDPA hinders innocence claims, particularly claims of legal innocence.

This Note agrees that innocence should be one of the most important considerations in granting writs but argues that it is not as valued as Congress intended. This Note proposes two congressional reforms to reinstate innocence to its paramount role without compromising finality: first, amending the federal habeas petition rule to allow petitioners …

Analyzing The Role Of Socio-Political And Cultural Factors In The Implementation Of Transitional Justice In Afghanistan From 2001-2021, Narwan Alawi, Tufail Ahmad Peerzada

Indonesian Journal of International Law

After the end of conflicts, countries generally try to prosecute the criminals who committed war crimes and violations of human rights during conflicts and civil wars to prevent the recurrence of such incidents. In some cases, special courts have been established to trial the perpetrators of these crimes. In post-2001 Afghanistan, as foreign forces led by the USA removed the Taliban from power and with the establishment of the Republic of Afghanistan, a new phase of transitional justice was anticipated. Although the Afghans initially hoped that justice would not be ignored, however, preference was given to establish peace, and the …

Sentencing Roulette: The Absurdity And Unconstitutionality Of The Crime Of Violence Enhancements, Noam Kozlov

University of Miami Race & Social Justice Law Review

The law needs to be clear. This dictum is true especially with respect to criminal law. Defendants need to be made aware of the statutory and judicial rules surrounding their trial, and sentencing outcome should be foreseeable, even if not predictable. But we have failed. We have failed in granting defendants this sought-after clarity, exposing them to grossly disproportional and disparate sentences. One such failure is found in the Crime of Violence enhancement rules. COV enhancements add years or even decades to sentences of defendants whose previous convictions are classified as 'violent'. Despite this detrimental impact of the COV rules, …

Michigan V. Tucker: A Reevaluation Of Miranda, Maine Law Review

Maine Law Review

In Michigan v. Tucker the Supreme Court considered whether to exclude the fruits of an interrogation that did not meet the precautionary standards of Miranda v. Arizona. The defendant contended that use of the evidence at his trial violated his fifth amendment privilege against self-incrimination. In deciding that the evidence had been properly admitted, the Tucker Court interpreted Miranda v. Arizona as outlining recommended procedural safeguards for the protection of fifth amendment rights and reasoned that omission of procedural safeguards does not necessarily constitute a violation of the underlying rights. Specifically, the Court concluded that a suspect who did not …

Appointment Of Counsel In Misdemeanor Prosecutions In Maine, Maine Law Review

Maine Law Review

When a criminal defendant appears without a lawyer before a trial court, the trial judge must decide whether to appoint counsel to represent him. The trial judge's decision is one of constitutional magnitude under both the United States and Maine Constitutions, and the decision made in any particular instance affects the integrity of the trial process and the validity of any conviction. The scope of the constitutional right to appointed counsel has lately been the subject of major decisions of the United States Supreme Court and of the Maine Supreme Judicial Court. The United States Supreme Court in Argersinger v. …

Prenatal Personhood, State Duties, And Congress’S Abortion Power Under The Fourteenth Amendment, David R. Upham

Catholic University Law Review

Many antiabortion jurists have contended that by its original meaning, the Fourteenth Amendment not only (1) recognizes the personhood of prenatal human beings, but also (2) requires states to have and enforce the antiabortion laws necessary to the equal protection of these prenatal persons, and even (3) empowers Congress to pass remedial antiabortion laws where the state fail to protect such persons.

In this essay, I will contend that the Amendment does indeed recognize the personhood of prenatal human beings, but largely leaves with the states the authority to determine the scope of the protection to be afforded such persons. …

Cyber And Tech-Based Partner Stalking In Jefferson County, Norah Wulkopf

Undergraduate Theses

Since stalking laws were enacted in the 1990s, they have been historically difficult to enforce. As less and less of our lives become private due to our ever-present devices, stalkers frankly have more access to their targets than ever before. The tenuous nature of stalking laws and the growing resources for stalkers place targets of stalking in a very precarious situation: the legal system has never been adequately equipped to handle stalking cases, and local justice systems do not have the resources to handle tech-based crimes. Through interviews with actors in the criminal justice system, this presentation considers how these …

Mens Rea And Insanity, Maine Law Review

Maine Law Review

Two developments in the administration of criminal law call for a closer examination of the relationship between mens rea and insanity. The first is the practice of bifurcating trials into a guilt phase and an insanity phase. The new Maine Criminal Code, for example, allows the defendant to elect such a procedure. The second development is the increasing willingness of courts to admit evidence of the accused's mental disease or defect as probative of whether he possessed the culpable state of mind, or mens rea, which must be proven as one of the elements of the crime charged. When the …

The Burden Of Proof And The Insanity Defense After Mullaney V. Wilbur, Maine Law Review

Maine Law Review

In 1970, the Supreme Court of the United States in the case of In re Winship specified an evidentiary standard of proof for criminal prosecutions as a requirement of the due process clause of the 14th amendment: "Lest there remain any doubt about the constitutional stature of the reasonable doubt-standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Five years later, in Mullaney v. Wilbur, the Court extended Winship to invalidate Maine's statutory scheme of …

State V. Hayes: Privacy Of The Mind And The Incompetent Defendant, Maine Law Review

Maine Law Review

Although numerous jurisdictions have faced the question of whether a criminal defendant can be considered competent to stand trial when his competency is medically induced, the question of whether the state may force the accused to take competency-inducing medication during trial over the pretrial objections of the defense is relatively novel. Confronted with that issue recently, the Supreme Court of New Hampshire in State v. Hayes held that the state could compel a criminal defendant to take psychotropic drugs' necessary to maintain competency if the jury was informed about the use of medication. It is clear from the New Hampshire …

Beware Of The Dangers Of The State-Created Danger Doctrine: A Look At The Ninth Circuit's Approach, Julia Steiner

University of Miami Law Review

The Fourteenth Amendment applies to state, not private, actors. It, like the whole of our Constitution, operates as a negative restraint on government. The Due Process Clause thus forbids states from taking certain action—but it does not and cannot compel the state to act ab initio. These core concepts formed the basis of the Supreme Court’s decision in DeShaney v. Winnebago County, where the Court reaffirmed that the only instance where the state assumes an affirmative duty to provide safety and security is when the state itself restrains an individual from protecting themselves.

Yet, since DeShaney, the circuit …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

The Development And Consequences Of The "Good Faith" Exception To The Exclusionary Rule And The Qualified "Good Faith" Immunity From Liability Under Section 1983, Philip M. Coffin Iii, Paul F. Driscoll

Maine Law Review

The remedies fashioned to redress violations of the fourth amendment to the United States Constitution continue to be the subject of much judicial, legislative, and scholarly inquiry. In striking the balance between the need to protect individual freedom and the need to protect society from criminal activity, the Supreme Court and Congress have developed two principal remedies for fourth amendment violations: the exclusionary rule and civil actions under 42 U.S.C. § 1983 or under theories of constitutional tort. on the development of both of these remedies it is assumed that their effectiveness is the true measure of fourth amendment liberties. …