Criminal Law Commons^™

The Concept Of "Less Eligibility" And The Social Function Of Prison Violence In Class Society, Ahmed A. White

Publications

No abstract provided.

Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser

Cardozo Law Review

No abstract provided.

Beyond Intention, Kimberly Kessler Ferzan

Cardozo Law Review

No abstract provided.

Has A New Day Dawned For Indigent Defense In Virginia?, Robert E. Shepherd Jr.

University of Richmond Law Review

No abstract provided.

The Price Of Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

The Challenge Of Implementing Atkins V. Virginia: How Legislatures And Courts Can Promote Accurate Assessments And Adjudications Of Mental Retardation In Death Penalty Cases, Richard J. Bonnie, Katherine Gustafson

University of Richmond Law Review

Our goal in this paper is to assist state courts and legislatures as they try to carry out the task that Atkins requires of them promoting fairness and accuracy in the assessment and adjudication of mental retardation. After addressing the definition ofmental retardation in Part I, we focus on its assessment in Parts II and III, highlighting several key requirements of a scientifi-cally and clinically adequate assessment.

Part II addresses the assessment of deficits in intellectual functioning, particularly on the measurement of intelligence as represented by an intelligence quotient. Appropriate IQ tests must be used, and the scores must be …

Efforts To Improve The Illinois Capital Punishment System: Worth The Cost?, Thomas P. Sullivan

University of Richmond Law Review

No abstract provided.

"Don't Ask, Don't Tell": Negligent Hiring Law In Virginia And The Necessity Of Legislation To Protect Ex-Convicts From Employment Discrimination, Nancy B. Sasser

University of Richmond Law Review

No abstract provided.

The Act Requirement As A Basic Concept Of Criminal Law, Francisco Muñoz-Conde, Luis Ernesto Chiesa

Cardozo Law Review

No abstract provided.

On The Very Idea Of Transitional Justice, Jens David Ohlin

Cornell Law Faculty Publications

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …

Is Water Property?, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence. Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Negotiated Shame: An Inquiry Into The Efficacy Of Settlement In Imposing Publicity Sanctions On Corporations, Joshua Andrix

Cardozo Law Review

No abstract provided.

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Cyber-Extortion: Duties And Liabilities Related To The Elephant In The Server Room, Adam J. Sulkowski

ExpressO

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim's information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns.

Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand.

Awareness of the risks of cybercrime …

Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner

Michigan Journal of Race and Law

This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the …

Taking Victims Seriously: A Dworkinian Theory Of Punishment, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Delimiting The Culture Defense, James M. Donovan, John Stuart Garth

Law Faculty Scholarly Articles

This essay builds upon the arguments of Alison Dundes Renteln in her influential book, The Cultural Defense (2004), in which she argues persuasively for a uniformly recognized culture defense in certain litigations. Critiquing some of her details, we recast her three-prong culture defense test to more effectively balance the competing interests of minority culture members to have their ways of life taken seriously by the courts, and of members of the dominant tradition who wish to preserve the rule of law with its necessary perception as treating all parties equally. The offered formulation now includes the following five elements:

1. …

Does Stare Decisis Apply In The Eighth Amendment Death Penalty Context, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Throughout the past few decades, the Supreme Court has steadily chipped away at the death penalty. It was only recently, however, that courts have confronted what role precedent plays in the Eighth Amendment death penalty context. Surprisingly, few scholars have yet explored this important and complicated issue. Precedent in this area is unique because the law of the Eighth Amendment is always changing and the Eighth Amendment has been interpreted to be applied more broadly in the death penalty context. This Article argues that precedent in the Eighth Amendment death penalty context does not apply in the typical fashion. Instead …

A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko

NYLS Law Review

No abstract provided.

Rocks, Hard Places, And Unconventional Domestic Violence Victims: Expanding Availability Of Civil Orders Of Protection In New York, Sarah E. Warne

NYLS Law Review

No abstract provided.

Book Review, Transitional Justice In The Twenty-First Century: Beyond Truth Versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena Eds., 2006) And Reconciliation In Divided Societies: Finding Common Ground (Erin Daly & Jeremy Sarkin Eds., 2006), Mark Drumbl

Scholarly Articles

It took a long time to get there but, near the close of the last millennium, humanity embraced measured accountability – instead of the extremes of impunity or vengeance – as the appropriate fate for perpetrators of mass atrocity. This embrace has prompted the construction of institutions, such as the International Criminal Court and the various ad hoc international or internationalized tribunals, to actualize this accountability imperative.

But this institution-building is only the start of the justice matrix. It is not the end point. A newer second generation of scholars and activists presses on. Agreeing on the need for accountability …

The Restorative Justice Wager: The Promise And Hope Of A Value-Based, Dialogue-Driven Approach To Conflict Resolution For Social Healing, Howard J. Vogel

Cardozo Journal of Conflict Resolution

In this article, I explore the deep assumptions and commitments associated with what I have called the restorative justice wager and the way in which they are embodied in restorative justice dialogue, the heart of restorative justice practice, in order to describe the important contribution that restorative justice has to offer to conventional forms of conflict resolution that have emerged in recent years. For this purpose the article is divided into three parts. Part I explores the definition of restorative justice in a criminal context and beyond in order to set up the discussion of the restorative justice wager and …

After Atrocity Examples From Africa: The Right To Education And The Role Of Law In Restoration, Recovery, And Accountability, Erika George

Faculty Scholarship

This article begins to consider these important questions through a discussion of the multiple models used to address, and redress massive human rights violations in South Africa, Rwanda, and Sierra Leone. I argue that lawyers and policy makers working to advance the rule of law must consider the role of law in transitional societies not only as a means of ensuring that perpetrators of grave human rights abuses are held accountable, but also as a foundation for the future. I submit that for the rule of law to take root, the conditions of a society must be fertile; and respect …

"Eggshell" Victims, Private Precautions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos

Michigan Law Review

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel

ExpressO

This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s jurisprudence. Finally, …

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.