Criminal Law Commons^™

Scarlet Letter Punishment For Juveniles: Rehabilitation Through Humiliation?, Bonnie Mangum Braudway

Campbell Law Review

This comment begins by discussing the historical development of the juvenile justice system and society's use of shaming penalties. In Section III, it will point out the dangers of using shaming penalties on juvenile offenders. Section IV will explore how the highest courts in two major jurisdictions may handle an appeal from a fictional juvenile sentenced to a shaming punishment. Finally, the comment will discuss possible improvements in the juvenile justice system.

"The Power To Govern Men And Things": Patriarchal Origins Of The Police Power In American Law, Markus Dirk Dubber

Buffalo Law Review

No abstract provided.

Flouting The Law, Janice Nadler

ExpressO

What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust …

A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs

ExpressO

Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

A Review Of Parliamentary Privilege With An Approach To Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The necessity of immunity of parliament and its Members has led to determine and assure particular privilege in the Constitutions or ordinary laws in the great majority of countries. This legal institution is to provide freedom of speech and to maintain the independence of representatives in the exercise of their duties without undue interference or fear.

To define and justify the necessity of it, different theories like "the prestige of representatives' legal personality" and "doctrine of necessity" have been introduced.

The legal supports, which observe the parliamentary privilege, can be generally studied in two categories with distinct descriptions and effects; …

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan

ExpressO

Scientifically valid instruments are being used for the first time to assess an individual’s risk of violence in criminal sentencing and in the civil commitment of mental patients and sexual predators. Risk factors on these instruments pertain to what the person is (e.g., gender), what the person has (e.g., personality disorder), what the person has done (e.g., past violence), and what has been done to the person (e.g., past victimization). In this Article, I argue that in criminal law, with its emphasis on blameworthiness for actions taken, the admissibility of scientifically valid risk factors is properly constrained to those that …

An Attitudinal Theory Of Excuse In Criminal Law, Peter Westen

ExpressO

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it. After defining "excuse" against commentators who argue that it cannot be coherently defined, and after criticizing competing theories of excuse, I argue that the feature that renders persons normatively blameless -- and, typically, legally blameless, too -- for engaging in conduct that a criminal statute prohibits is the possession of a certain attitude with which he engages in it. A person …

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Unchecked And Imbalanced? A Critical Reading Of The U.S. Constitution, Madeleine Severin

Cardozo Law Review

No abstract provided.

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

San Diego Law Review

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

A V. B, Aharon Barak, Ayala Procaccia, Eliezer Rivlin

Translated Opinions

Facts: The respondent had a long-term relation with the appellant, while both parties were married to others. During this relationship, the respondent encouraged the appellant to obtain a divorce from her husband, and promised to divorce his wife and marry the appellant. The appellant did obtain a divorce from her husband, but the respondent did not divorce his wife.

The appellant sued for damages for breach of a promise of marriage. The respondent argued, inter alia, that a promise of marriage given by a married man is void for being contrary to public policy. The Magistrates Court awarded a lump-sum …

The Legacy Of The Prompt Complaint Requirement, Corroboration Requirement, And Cautionary Instructions On Campus Sexual Assault, Michelle J. Anderson

Working Paper Series

No abstract provided.

Summary Of Allred V. State, 120 Nev. Adv. Op. 47, Hilary Barrett Muckleroy

Nevada Supreme Court Summaries

No abstract provided.

Culture Clash: Teaching Cultural Defenses In The Criminal Law Classroom, Susan S. Kuo

Faculty Publications

In the law school classroom, the Socratic method of legal analysis removes a dispute at issue in a given case from its sociocultural context and takes the cultural backgrounds of the parties into account only when they serve the legal argument. The language of the law commands law students to siphon off the emotional and cultural content because of the enduring belief that the law is neutral and impartial. Accordingly, cultural conflicts are deemed irrelevant to legal analysis because laws are unbiased and culture-blind. This detached outlook has been termed perpectivelessness to denote a neutral, odorless, colorless non-perspective.

This essay …

Picture Perfect? X-Ray Searches At The United States Border Require Guidance, Lauren Bercuson

University of Miami Inter-American Law Review

No abstract provided.

The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington

University of Arkansas at Little Rock Law Review

No abstract provided.

Law, Terrorism, And Social Movements: The Tension Between Politics And Security In Germany's Anti-Terrorism Legislation, Shawn Boyne

Cardozo Journal of International and Comparative Law

The article explores Germany's approach to combating terrorism from the late 1960s to the 1980s, emphasizing the interplay between security measures and civil liberties. It argues that political power struggles, rather than the terrorist threat itself, often drove antiterrorism legislation. The analysis highlights how laws such as the Berufsverbot and criminal code revisions were used to suppress dissent, leading to public backlash and eventual reforms. In contrast to the U.S., which framed its post-9/11 response as war, Germany maintained judicial oversight and avoided suspending constitutional rights. Public opinion played a pivotal role in shaping these policies, ultimately fostering a stronger …

Donating "Blood Money": Fundraising For International Terrorism By United States Charities And The Government's Efforts To Constrict The Flow, Montgomery E. Engel

Cardozo Journal of International and Comparative Law

The note examines the U.S. government's use of blocking orders against charitable organizations suspected of supporting terrorism, arguing that while such orders are effective in disrupting terrorist financing, they raise significant concerns about due process, transparency, and the equitable treatment of Muslim-American donors. The author advocates for a shift toward criminal prosecution as a more effective and equitable strategy, balancing national security with civil liberties.

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

Articles

No abstract provided.

Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court …

The Demise Of Corrections Fifteen Years On: Any Hope For Progressive Punishment?, Mark Findlay

Research Collection Yong Pung How School Of Law

A decade and a half ago I wrote an article entitled The Demise of Corrections (Findlay 1988). The central thesis was that penal correctionalism had failed because it was piecemeal and lacked the support of a well developed commitment to alternative strategies to the prison. The criticism is sharper in the current context of imprisonment in NSW where correctional expectations continue to disappoint (and be disappointed), despite a recent revival of interest in 'what works' offender management programmes.

Juror First Votes In Criminal Trials, Stephen P. Garvey, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Martin T. Wells

Cornell Law Faculty Publications

Our analysis of the voting behavior of over 3,000 jurors in felony cases tried in Los Angeles, Maricopa County, the District of Columbia, and the Bronx reveals that only in D.C. does a juror's race appear to relate to how he or she votes. African-American jurors in D.C. appear more apt to vote not guilty on the jury's first ballot in cases involving minority defendants charged with drug offenses. We find no evidence, however, that this effect survives into the jury's final verdict.

Criminal Case Complexity: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Criminal case complexity persists as a central tenet in many academic and public critiques of our legal system even though little is known about two critical questions. One question is whether key actors (juries, attorneys, and judges) view case complexity similarly. In other words, do juries, attorneys, and judges agree on whether a case is complex? A second question involves the determinants of case complexity for each group. That is, what factors make a case more (or less) complex for juries, attorneys, and judges. This article explores both questions from an empirical perspective with the benefit of recent data from …

Summary Of Bailey V. State, Scott Whittemore

Nevada Supreme Court Summaries

No abstract provided.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Why It Is Essential To Teach About Mental Health Issues In Criminal Law (And A Primer On How To Do It), Richard E. Redding

Working Paper Series

Studies consistently show a high prevalence of mental disorders among criminal defendants. Forensic mental health issues thus arise frequently in the criminal justice system and are commonly encountered by prosecutors, defense attorneys, and judges—much more so than some criminal law doctrines (e.g., necessity, duress, impossibility) routinely taught in criminal law courses. Yet rarely are students taught about mental illness, how to represent mentally ill clients, adjudicative competence, the mental health needs of various offender groups and how these unmet needs may contribute to criminal behavior, or the use of mental health mitigation evidence at sentencing. If taught at all, such …