Legal History Commons^™

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 …

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.

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

"The Public Gaze And The Prying Eye:" The South And The Privacy Doctrine In Nineteenth-Century Wife Abuse Cases, Jerome Nadelhaft

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty

NYLS Law Review

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …

The Adulterous Wife: A Cross-Historical And Interdisciplinary Approach, Meghan E.B. Norton

Buffalo Women's Law Journal

No abstract provided.

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

BYU Law Review

No abstract provided.

On The Very Idea Of Transitional Justice, Jens David Ohlin

Cornell Law Faculty Publications

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …

Keeping The State Out: The Separation Of Law And State In Classical Islamic Law, Lubna A. Alam

Michigan Law Review

The implementation and enforcement of Islamic law, especially Islamic criminal law, by modem-day Muslim nation-states is fraught with controversy and challenges. In Pakistan, the documented problems and failures of the country's attempt to codify Islamic law on extramarital sexual relations have led to efforts to remove rape cases from Islamic law courts to civil law courts. In striking contrast to Pakistan's experience, the Republic of the Maldives recently commissioned a draft of a penal law and sentencing guidelines based on Islamic law that abides by international norms. The incorporation of Islamic law into the legal systems of various countries around …

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. …

Rape And The Querela In Italy: False Protection Of Victim Agency, Rachel A. Van Cleave

Michigan Journal of Gender & Law

This Essay describes the history of the querela in Italy and explores the controversy surrounding the decision to maintain this institution. In addition, this Essay questions the degree to which the querela can protect victim agency when the attitudes of judges and lawyers in the Italian criminal justice system reflect persistent rape myths.

The Oklahoma City Bombing And The Trial Of Timothy Mcveigh, Douglas O. Linder

Faculty Works

A bomb carried in a Ryder truck exploded in front of the Murrah Federal Building in Oklahoma City at 9:02 a.m. on April 19, 1995. The bomb claimed 168 innocent lives. That a homegrown, war-decorated American terrorist named Timothy McVeigh drove and parked the Ryder truck in the handicap zone in front of the Murrah Building there is little doubt. In 1997, a jury convicted McVeigh and sentenced him to death. The federal government, after an investigation involving 2,000 agents, also charged two of McVeigh's army buddies, Michael Fortier and Terry Nichols, with advance knowledge of the bombing and participation …

Trial Of The Rosenbergs: An Account, Douglas O. Linder

Faculty Works

The Rosenberg Trial is the sum of many stories: a story of betrayal, a love story, a spy story, a story of a family torn apart, and a story of government overreaching. As is the case with many famous trials, it is also the story of a particular time: the early 1950's with its cold war tensions and headlines dominated by Senator Joseph McCarthy and his demagogic tactics. The Manhattan Project was the name given to the top-secret effort of Allied scientists to develop an atomic bomb. One of the Manhattan Project scientists working in Los Alamos was a British …

When Misdemeanors Are Felonies: The Aggravated Felony Of Sexual Abuse Of A Minor, William J. Johnson

NYLS Law Review

No abstract provided.

Taking Victims Seriously: A Dworkinian Theory Of Punishment, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye

Faculty Scholarship

Legal literature and case law depicts the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the irresistible power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This essay shows that Dreyfus is not a case of mathematics run amok, unchecked and uncomprehended. To the contrary, the defects in the mathematical proof were dramatically exposed, and this evidence did not lead Dreyfus's judges to condemn him. This history undercuts the reliance of modern courts and commentators on Dreyfus as an indication or illustration of the alleged dangers of probability evidence …

The Sad, Sad Story Of Lula Viers, Richard H. Underwood, Sharon Ray

Law Faculty Scholarly Articles

In this article, Professor Richard H. Underwood explores the murder ballad entitled Lula Viers. Lula Viers was from the Appalachia region of Kentucky.

The Mcmartin Preschool Abuse Trial, Douglas O. Linder

Faculty Works

The McMartin Preschool Abuse Trial, the longest and most expensive criminal trial in American history, should serve as a cautionary tale. When it was all over, the government had spent seven years and $15 million dollars investigating and prosecuting a case that led to no convictions. More seriously, the McMartin case left in its wake hundreds of emotionally damaged children, as well as ruined careers for members of the McMartin staff. No one paid a bigger price than Ray Buckey, one of the principal defendants in the case, who spent five years in jail awaiting trial for a crime (most …

The Trial Of John Brown: A Commentary, Douglas O. Linder

Faculty Works

The arrest, trial, and execution of John Brown in the fall of 1859 came at a critical moment in United State history. According to historian David S. Reynolds in his biography, "John Brown, Abolitionist: The Man Who Killed Slavery, Sparked the Civil War, and Seeded Civil Rights" (2005), Brown's actions and statements following his failed attempt to begin a slave insurrection near Harper's Ferry, Virginia so polarized northern and southern opinion on the slavery issue as to ensure Abraham Lincoln's election and cause the Civil War to occur perhaps two decades earlier than it might have otherwise. Reynolds is quick …

The Trial Of Lizzie Borden, Douglas O. Linder

Faculty Works

"Lizzie Borden took an axe, and gave her mother forty whacks. When she saw what she had done, she gave her father forty-one." Actually the Bordens received only 29 whacks, not the 81 suggested by the famous ditty, but the popularity of the poem is a testament to the public's fascination with the 1893 murder trial of Lizzie Borden. The source of that fascination might lie in the almost unimaginably brutal nature of the crime - given the sex, background, and age of the defendant - or in the jury's acquittal of Lizzie in the face of prosecution evidence that …

The Trial Of Richard Bruno Hauptmann, Douglas O. Linder

Faculty Works

Journalist H. L. Mencken called the trial of Bruno Hauptmann, the accused kidnapper of the baby of aviator Charles Lindbergh, the greatest story since the Resurrection. While Mencken's description is doubtless an exaggeration, measured by the public interest it generated, the Hauptmann trial stands with the O. J. Simpson and Scopes trials as among the most famous trials of the twentieth century. The trial featured America's greatest hero, a good mystery involving ransom notes and voices in dark cemeteries, a crime that is every parent's worst nightmare, and a German-born defendant who fought against U. S. forces in World War …

People V. Campbell, Winston Richmond Brownlow

NYLS Law Review

No abstract provided.

The Feminist War On Crime, Aya Gruber

Publications

One of the most celebrated successes of the feminist movement is its lasting impact on domestic violence criminal laws. Today, society has moved from discourse characterizing domestic abuse as legitimate or merely a private problem to a belief that battering is a heinous crime, more egregious than garden-variety assault. I know all too well how far the pendulum has swung, having practiced as a public defender in the District of Columbia domestic violence system. Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the …