Criminal Law Commons^™

California's Three Strikes And We're Out: Was Judicial Activism California's Best Hope?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).

Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate …

Rethinking Crime Legislation: History And Harshness, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is a truth about the criminal law that scholars evade as much as they criticize: the criminal law is produced by legislators (rather than the experts). The author states she does not know of any way to make law in a democracy other than through the voters' representatives. And, yet, it is the standard pose of the criminal law scholar to denigrate legislatures and politicians as vindictive, hysterical, or stupid. All of these things may be true but name-calling is a poor substitute for analysis. As in constitutional law, so too in criminal law, it is time to put …

Defense-Oriented Judges, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this essay, I argue in favor of so-called "defense-oriented judges." Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who …

Too Much Heart And Not Enough Heat: The Short Life And Fractured Ego Of The Empathic, Heroic Public Defender, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this Article I will examine Professor Ogletree's paradigm for motivating and sustaining public defenders ten years after he proposed it. I will discuss whether Professor Ogletree's paradigm works for defenders in the predominantly high-volume, urban settings in which they practice, and if so, for how long. If the paradigm works for short-term defenders only - or those with smaller caseloads - then perhaps it is a temporary, not a sustaining, motivation. I will examine whether the paradigm is helpful- on an aspirational level if nothing else – or whether it emphasizes motivations that are ultimately self-defeating. After discussing Professor …

The Entrapment Defense: An Interview, Paul Marcus

Faculty Publications

No abstract provided.

The Transnational And Sub-National In Global Crimes, Lan Cao

Faculty Publications

No abstract provided.

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal evolution from *Bowers v. Hardwick* to Lawrence v. Texas, highlighting how the latter marked a pivotal shift in recognizing LGBTQ+ rights by emphasizing personal autonomy and dignity. It underscores the significance of narrative strategies in shaping judicial decisions, particularly in *Lawrence*, where the plaintiffs' personal stories influenced the Court's ruling.

The Battle To Establish An Adversarial Trial System In Italy, William T. Pizzi, Mariangela Montagna

Publications

No abstract provided.

A Different Kind Of Labor Law: Vagrancy Law And The Regulation Of Harvest Labor, 1913-1924, Ahmed A. White

Publications

No abstract provided.

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

The Future Of American Sentencing: A National Roundtable On Blakely, Ronald J. Allen, Albert Alschuler, Douglas A. Berman, Stephanos Bibas, Frank O. Bowman Iii, Daniel P. Blank, Charles R. Breyer, Steven Chanenson, Michael R. Dreeben, Margareth Etienne, Jeffrey L. Fisher, Patrick Keenan, Joseph E. Kennedy, Nancy J. King, Susan J. Klein, Rory K. Little, Marc L. Miller, J. Bradley O'Connell, David Porter, Kevin R. Reitz, Daniel C. Richman, Kate Stith, Barbara Tombs, Richard B. Walker, Robert Weisberg, Robert F. Wright Jr., Jonathan Wroblewski, David N. Yellen

Faculty Scholarship

In the wake of the dramatic Supreme Court decision in Blakely v. Washington, Stanford Law School convened an assembly of the most eminent academic and professional sentencing experts in the country to jointly assess the meaning of the decision and its implications for federal and state sentencing reform. The event took place on October 8 and 9, just a few months after Blakely came down and the very week that the Supreme Court heard the arguments in United States v. Booker and United States v. Fanfan, the cases that will test Blakely's application to the Federal Sentencing Guidelines. Thus the …

On Aristotelian Criminal Law: A Reply To Duff, Kyron J. Huigens

Articles

No abstract provided.

Punishment, Guilt, And Shame In Biblical Thought, George P. Fletcher

Faculty Scholarship

The centrality of guilt in the criminal law provides puzzling perspective in the perennial debate on the nature and purpose of punishment. Why is it that all legal systems use this highly charged moral term to refer to an essential component of liability to punishment? This question is not easily answered. The reliance on the concept of guilt in the criminal law is suffused with paradox and mystery.

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

Crime, Law, And The Community: Dynamics Of Incarceration In New York City, Jeffrey A. Fagan

Faculty Scholarship

Random Family (LeBlanc 2003) tells the story of a tangled family and social network of young people in New York City in which prison threads through their lives since childhood. Early on, we meet a young man named Cesar, who sold small amounts of crack and heroin in the streets near his home in the Bronx. During one of his many spells in jail, Cesar sees his father pushing a cafeteria cart in the Rikers Island Correctional Facility, New York City’s jail. Cesar had not seen his father in many years, but he was not very surprised to see him …