Criminal Procedure Commons^™

Social Reality And Philosophical Ideals In Transitional Justice, Jamie Rowen

Cardozo Public Law, Policy & Ethics Journal

The article argues that transitional justice mechanisms in post-conflict societies, such as Bosnia, often fail to establish legitimate authority because they neglect the crucial role of community building. It emphasizes that community is a prerequisite for legal authority and highlights the dialectical relationship between law and community, where each can shape the other. The case of Bosnia illustrates how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the War Crimes Chamber (WCC) in Sarajevo have struggled to gain legitimacy due to their focus on procedural values over community engagement. The article advocates for a reoriented approach to transitional …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy-A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald

Cardozo Journal of International and Comparative Law

The article explores the integration of restorative justice within Canada's criminal justice system, emphasizing its potential to enhance human capital development and community capacity through deliberative democratic processes. It argues that restorative justice offers a more effective and responsive approach compared to traditional punitive measures, which often fail to address the root causes of crime and may even exacerbate recidivism. By examining the Nova Scotia Restorative Justice Program as a model, the analysis highlights the benefits of combining restorative practices with formal criminal justice systems, advocating for a shift towards more inclusive and rehabilitative approaches to crime.

Redefining The Question: Applying A Hierarchical Structure To The Mens Rea Requirement For Section 875(C), Karen Rosenfield

Cardozo Law Review

No abstract provided.

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.

Presumptions, Inferences, And Strict Liability In Illinois Criminal Law: Preempting The Presumption Of Innocence?, 41 J. Marshall L. Rev. 715 (2008), Theodore A. Gottfried, Peter G. Baroni

UIC Law Review

No abstract provided.

The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill

UIC Law Review

No abstract provided.

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

The Illinois Criminal Code Of 2009: Providing Clarity In The Law, 41 J. Marshall L. Rev. 815 (2008), Governor James R. Thompson, Justice Gino Divito, Peter G. Baroni, Kathy Saltmarsh, Daniel Mayerfeld

UIC Law Review

No abstract provided.

Danforth, Retroactivity, And Federalism, J. Thomas Sullivan

Oklahoma Law Review

No abstract provided.

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

Rethinking Dui Law In Virginia, Monte Kuligowski

University of Richmond Law Review

As the demand for safer roadways needs little supporting argument, I turn to the constitutional problem of strict criminal liability law, followed with a brief analysis of criminal intent and strict liability law within the criminal system, some examples of how other states have responded to the inherent tensions, and a few specific thoughts for the legislature to consider.

A Philosopher Looks At Contemporary Terrorism, Igor Primoratz

Cardozo Law Review

No abstract provided.

Mediating Rules In Criminal Law, Richard A. Bierschbach, Alex Stein

Articles

This Article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law's deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law's dominant animating theories-deterrence and …

Deterrence, Retributivism, And The Law Of Evidence, Richard A. Bierschbach, Alex Stein

Articles

Legal scholarship has long treated substantive criminal law and evidence as two separate and distinct fields. The former largely concerns itself with evaluating substantive criminal law rules by reference to various animating theories-most prominently, those of deterrence and retributivism.' Scholars, students, and policymakers laud or condemn doctrines based on notions of "just deserts" or ideas about the incentives they create for those disposed to commit a crime. When it comes to the numerous evidentiary and other rules that determine the course of prosecutions and proof, however, the conversation is different. Here, questions of reliability, evidential worth, and accuracy in fact-finding …

Introduction, Kyron Huigens

Cardozo Law Review

No abstract provided.

The Conundrum Of Mental States: Substantive Rules And Evidence Combined, Keren Shapira-Ettinger

Cardozo Law Review

No abstract provided.

Why Only The State May Inflict Criminal Sanctions: The Argument From Moral Burdens, Alon Harel

Cardozo 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.

Thinking Criminal Law, Meir Dan-Cohen

Cardozo Law Review

No abstract provided.

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Cardozo Law Review

No abstract provided.

The Jurisprudence Of Punishment, Kyron J. Huigens

Articles

No abstract provided.

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. …

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

ExpressO

No abstract provided.

Principled Consequentialism, Hamish C. Stewart

ExpressO

This Article characterizes and seeks to reconcile two competing approaches to legal reasoning, through the lens of the problem of the determinacy of legal doctrine. On the “neo-formalist” approach, characteristic of many modern liberal scholars, the appropriate doctrinal answer to any legal problem can be determined by working out, in a quasi-deductive way and in isolation from consequentialist considerations, the implications of a small and stable set of legal principles. On the “neo-realist” approach, characteristic of many economic analysts of law but also of certain leftist critics of liberalism, principles provide no determinate answer to legal problems; the only way …

Dialogic Allocution, Felix Valenzuela

ExpressO

This Article argues in favor of increasing the scope of the national sentencing dialogue in order to remedy the current sentencing defects. The increase in scope hinges on expanding the role of allocution within criminal sentencing. By treating allocution as seriously as the Federal Rules do, new discussants will contribute creative solutions for the defects, while at the same time enhancing institutional and ontological legitimacy. To achieve that end, the Article proposes a modified view of allocution. This dialogic allocution unifies the judge and defendant as co-discussants in the national debate, rather than pitting them against each other. The Article …

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.

Habeas Corpus, Judicial Review, And Limits On Secrecy In Detentions At Guantanamo, Jonathan Hafetz

Cardozo Public Law, Policy & Ethics Journal

The article examines the role of secrecy in post-9/11 counterterrorism detentions, particularly at Guantanamo Bay, and the legal challenges posed by the Detainee Treatment Act (DTA) and Military Commissions Act (MCA). These acts sought to limit habeas corpus jurisdiction, potentially restoring a system of unaccountable detentions. The analysis highlights how habeas corpus serves as a critical check on executive power, ensuring judicial review of detentions and transfers, and protecting against unlawful confinement. The Supreme Court's rulings in Rasul v. Bush and Hamdan v. Rumsfeld are central to this discussion, as they affirmed habeas protections and invalidated certain detention practices.

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.

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 …