Criminal Law Commons^™

Employment Division V. Smith At The Supreme Court: The Justices, The Litigants, And The Doctrinal Discourse, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

Illinois V. Wardlow

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Oberlin Fugitive Slave Rescue: A Victory For The Higher Law, Steven Lubet

Faculty Working Papers

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book -- Fugitive Justice: Runaways, Rescuers, and Slavery on Trial -- which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and …

One Day Criminal Careers: The Armed Career Criminal Act's Different Occassions Provisions, 44 J. Marshall L. Rev. 963 (2011), Jenny W.L. Osborne

UIC Law Review

No abstract provided.

Good Faith And Law Evasion, Samuel W. Buell

Faculty Scholarship

Laws imposing sanctions can be self-defeating by supplying incentive and guidance for actors engaged in socially undesirable activities to reshape conduct to avoid penalties. Sometimes this is deterrence. But if the new activity, as much as the old, contravenes the normative stance of the legal project, it is a failure of law. The problem of evasion warrants response in many fields - not least in criminal law despite the frequent and too simple assumption that legality-related values require narrow prohibitions that unavoidably permit evasion. Three common responses to evasion have serious deficits. Foregoing control of evasion is a mistake if …

How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, 55 St. Louis U. L.J. 953 (2011), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Faculty Publications By Year

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …

Prosecuting Federal Crimes In State Courts, Michael G. Collins, Jonathan R. Nash

Faculty Articles

Despite the ancient maxim that the courts of one sovereign will not “execute the penal laws of another,” they sometimes do. For example, federal courts can hear state-law criminal prosecutions of federal officers for acts taken in the course of their duties that are brought initially in state court and are then removed to federal court. In addition, some states now open their courthouse doors to officials from other states to pursue tax enforcement actions against delinquent taxpayers. But states still do not (and perhaps cannot) entertain prosecutions of fugitives solely for crimes committed in another state because the Constitution …

Informal Law-Making In England By The Twelve Judges In The Late 18th And Early 19th Centuries, James Oldham

Georgetown Law Faculty Publications and Other Works

In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.” The Court for Crown Cases Reserved formalized an off-the-record procedure that had been followed for centuries. When …

Censoring Crimes, Barak Y. Orbach, Allison S. Woolston

Cardozo Arts & Entertainment Law Journal

Concerns regarding the harmful influence of films on youth and adults have always motivated censorship and justified, in some minds, greater government control over content. Many motion pictures portray illegal conduct-theft, robbery, embezzlement, arson, drug dealing, assault, rape, murder, treason, and other crimes. In most instances, commission of the underlying crime is not needed for the production of the film. Despite the perpetual fear of the "capacity for evil" of films, the legality of motion pictures that commercialize crimes has not been studied as a concept. This Essay explores the reasons for this neglect and examines the problems this omission …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Publications

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

A Diva Defends Herself: Gender And Domestic Violence In An Early Twentieth-Century Headline Trial, Carolyn B. Ramsey

Publications

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend …

A Tale Of Prosecutorial Indiscretion: Ramsey Clark And The Selective Non-Prosecution Of Stokely Carmichael, Lonnie T. Brown

Scholarly Works

During the height of the Vietnam War and one of the most volatile periods of the civil rights movement, then-Attorney General Ramsey Clark controversially resisted intense political pressure to prosecute Black Power originator and antiwar activist Stokely Carmichael. Taken in isolation, this decision may seem courageous and praiseworthy, but when considered against the backdrop of Clark’s contemporaneous prosecution of an all-white group of similarly situated anti-draft leaders (the so-called Boston Five), his exercise of prosecutorial discretion becomes suspect. Specifically, the Boston Five were prosecuted in 1968 for conspiracy to aid and abet draft evasion, a charge for which the evidence …

The Contradiction: Animal Abuse - Alive And Well, 44 J. Marshall L. Rev. 209 (2010), Katie Galanes

UIC Law Review

No abstract provided.

Victor's Justice: Selecting "Situations" At The International Criminal Court, 43 J. Marshall L. Rev. 535 (2010), William A. Schabas

UIC Law Review

No abstract provided.

The Nuremberg Tribunal V. The Tokyo Tribunal: Designs, Staffs, And Operations, 43 J. Marshall L. Rev. 753 (2010), Zachary D. Kaufman

UIC Law Review

No abstract provided.

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Case Of The Black-Gloved Rapist: Defining The Public Defender's Role In The California Courts, 1913-1948, Sara Mayeux

Vanderbilt Law School Faculty Publications

This essay traces [these] two competing visions of the public defender in California from 1913 to 1948, and examines how and why the second view ultimately prevailed, at least doctrinally. On the ground, some public defenders may have continued to see themselves primarily as public servants, and some trial judges may have endorsed this view. But in the 1940s, California appellate judges rejected the Progressive ideal of the public defender. They constructed the public defender as an opponent of the state, leaving intact (at least in theory) the American adversary system of criminal justice.

In so doing, they followed the …

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Publications

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Publications

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

All Faculty Scholarship

At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

International Terrorism: The Legitimization Of Safe Harbor States In International Law, Carol A. Bahan

NYLS Law Review

No abstract provided.

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

The Expanding Use Of The Res Gestae Doctrine, H. Patrick Furman, Ann England

Publications

This article provides a brief history of the doctrine of res gestae and an analysis of its current usage in both Colorado state and federal courts.

Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler

Faculty Working Papers

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …

The Mission Of The Criminal Law Edit, Alignment And Reform Commission (Clear): An Introductory Commentary, 41 J. Marshall L. Rev. 611 (2008), John Decker

UIC Law Review

No abstract provided.

Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin

UIC Law Open Access Faculty Scholarship

No abstract provided.

"All The News That's Fit To Print": The New York Times, "Yellow" Journalism, And The Criminal Trial 1892-1902, Trevor D. Dryer

Nevada Law Journal

No abstract provided.