Criminal Law Commons^™

Incorporating Transnational Law In First Year Criminal Law And Procedure Classes, Ellen S. Podgor

Journal of Legal Education

No abstract provided.

Turning A Blind Eye To Misleading Scientific Testimony: Failure Of Procedural Safeguards In A Capital Case, William C. Thompson

ExpressO

In September 1999, Robin Lovitt was convicted and sentenced to death for the murder of a pool hall manager in Arlington, Virginia. The DNA evidence that was a key part of the government’s case was presented in a misleading and unfair manner. In this case study, we first examine the way in which DNA evidence was misused. We then discuss the failure of the legal system at all levels to recognize and remedy this problem. Our goal is to explain how a system that supposedly leaves no stone unturned in capital trials managed to miss or ignore a crucial problem …

Wallace V. City Of Chicago And Accrual Of 1983 Claims, Michael D. Frisch

ExpressO

This comment will analyze the recent 7th circuit case, Wallace v. City of Chicago. By ruling that claims under 1983 accrue from the moment of the injury, Wallace basically prevents convicts from recovering under 1983. I will examine the case and suggest resolutions for when the Supreme Court hears the case this term. See 440 F.3d 421

One Small Step: The Past, Present, And Future Of The Federal Sentencing System , Matthew Jill

ExpressO

The federal sentencing guidelines, which focus on offense based statistical consistency, had a ripple effect that molded the entire federal sentencing system in it’s wake; this article is an individual case study demonstrating the flaws of a consistency based sentencing system, the injustice such a system can create, and why United States v. Booker is only the first step in creating a fair and effective sentencing system.

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.

What's Wrong With Involuntary Manslaughter?, Stephen P. Garvey

Cornell Law Faculty Publications

Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of …

Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer

ExpressO

In this article the author puts forth an approach to regulating Situational Crime Prevention (SCP) (i.e. steps to preemptively eliminate or reduce crime, such as preemptive exclusion and closed circuit TV monitoring in Mass Private Space (i.e. private property that has characteristics normally associated with public spaces, such as a large shopping mall).

It has become increasingly common for owners of mass private space to employ SCP techniques such as close circuit television monitoring, exclusion of persons based upon behavior or risk factors and limits on attire, such as colors associated with gangs. While there has been a lively scholarly …

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Cyberstalking, A New Crime: Evaluating The Effectiveness Of Current State And Federal Laws, Naomi Harlin Goodno

ExpressO

Imagine a distressed woman discovering the following message on the Internet that was falsely attributed to her: “Female International Author, no limits to imagination and fantasies, prefers group macho/sadistic interaction . . . stop by my house at [current address] . . . . Will take calls day or night at [current telephone number] . . . I promise you everything you ever dreamt about. Serious responses only.” This is an example of cyberstalking – which involves the use of the Internet, e-mail, or other means of electronic communication to stalk another individual. Current statistics suggest that tens of thousands …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Dead Man Waiting: Death Row Delays, The Eighth Amendment, And What Courts And Legislatures Can Do, Kate Mcmahon

Buffalo Public Interest Law Journal

No abstract provided.

Practice What You Preach: How Restorative Justice Could Solve The Judicial Problems In Clergy Sexual Abuse Cases, Diana L. Grimes

Washington and Lee Law Review

No abstract provided.

Is Looting Ever Justified?: An Analysis Of Looting Laws And The Applicability Of The Necessity Defense During Natural Disasters And States Of Emergency, Stephanie J. Hamrick

Nevada Law Journal

No abstract provided.

Executive-Branch Regulation Of Criminal Defense Counsel, Darryl K. Brown

ExpressO

The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but does not contract. On this account, America’s excessive criminal codes are products of structural failures in political process and democratic institutions.

Yet this story fails to account for much of American criminal law policy and practice. As this article documents in the first systematic study of …

Rethinking Civil Contempt Incarceration, Jessica C. Kornberg

ExpressO

Under current federal law civil contempt is governed by the Federal Rules of Civil Procedure, yet it often results in incarceration. This incarceration can, and in a few cases has been, indefinite. The unlimited duration of civil contempt represents the pinnacle of judicial power, and yet it is a topic which has generated surprisingly little scholarship or case law. This Article explores the history and development of modern contempt law, and finds that while the federal law treats all civil contemnors equally, historically and in many states, contemnors are classified by the type of civil contempt committed. This Article proposes …

Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell

ExpressO

Before the civil war, “lynching” signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to “vigilante values,” that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially …

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …

Stuck In The Thicket: Struggling With Interpretation And Application Of California's Anti-Gang Step Act, Martin Baker

ExpressO

California’s Street Terrorism Enforcement and Prevention Act (Penal Code Sections 186.20 et seq.) was enacted in 1988 in response to a perceived “state of crisis . . . caused by violent street gangs” throughout the state. The “STEP” Act created a distinct crime of active participation in a criminal street gang, as well as providing enhanced penalties for any crime committed with the intent to facilitate criminal gang activity.

Since its enactment, the poorly drafted Act—described by the California Supreme Court as a “thicket of statutory construction”—has produced an array of conflicting and vague appellate opinions. This article examines the …

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

ExpressO

The Liberal Assault on the Fourth Amendment Christopher Slobogin As construed by the Supreme Court, the Fourth Amendment’s reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects–-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings …

Two Cases Of Apostasy In Dubno In 1716 Jews, Christians, And Family Life, Magda Teter

Early Modern Workshop: Resources in Jewish History

This text relates a trial of two Christian women who accepted to Judaism that took place in the city of Dubno in eastern Poland in 1716. The text presented here comes from a collection of primary sources published in Kiev [now Kyiv] in 1869, as part of effort by scholars at the time to collect and publish primary source materials about Ukraine. The collection is called Arkhiv Iugo-zapadnoi Rossii, or The Archive of South-Western Russia, and contains documents from the South-Western part of Ukraine.

This presentation is for the following text(s):

• Two Cases of Apostasy in Dubno in 1716

Courts, Cops, Citizens, And Criminals, Justin David Heminger

ExpressO

The Supreme Court's 4-1-4 split decision in Missouri v. Seibert causes confusion with regard to question-first Miranda violations. Courts apply a Marks narrowest ground analysis to decide which opinion in Seibert is controlling. However, the majority approach to Seibert, which finds Justice Kennedy's concurrence controlling, is incorrect. Instead, lower courts should resolve question-first Miranda violations by applying legal principles expressed in the plurality's decision.

No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King

ExpressO

The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

Beyond Conspiracy? Anticipatory Prosecution And The Challenge Of Unaffiliated Terrorism, Robert Chesney

ExpressO

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be “forward-leaning” in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in …

Career Criminals Targeted: The Verdict Is In, California’S Three Strikes Law Proves Effective, Naomi Harlin Goodno

ExpressO

Being sentenced to life in prison for stealing a few video tapes or stealing golf clubs? These are few of the stories that are emphasized when criticizing California’s Three Strikes law. Since its inception, California’s Three Strikes law has generated controversy. Aimed at incarcerating career criminals, it has been tagged as one of the toughest “tough on crime” statutes in the country. It has been over a decade since the law was passed and this article explores why – contrary to most of the other academic discussions of the law— it has been and continues to be effective in dealing …

The Boundaries Of Plea Bargaining: Negotiating The Standard Of Proof , Talia Fisher

ExpressO

The paper explores the boundaries of the plea bargaining process, and makes a case for extending them to the criminal standard of proof. It examines the possibility of converting the criminal standard of proof into a default rule, subject to negotiation between the parties. Under current plea bargaining practices, the defendant agrees to plead guilty in exchange for concessions on punishment offered by the prosecutor. According to the model proposed here, the negotiation process would not be limited to the attainment of a full admission of guilt. Rather, the prosecutor would also be able to obtain from the defendant a …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …