Criminal Law Commons^™

The Law Of War In The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians is a recurring problem that is integrally related to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict is perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be …

Skilling: More Blind Monks Examining The Elephant, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Most academics and practitioners with whom the author has discussed the result in Skilling v. United States believe that it is a sensible decision. That is, the Supreme Court did the best it could to limit the reach of 18 U.S.C. § 1346, which all nine justices apparently believed—correctly—was, on its face, unconstitutionally vague. Congress responded quickly and with little consideration with the supremely under-defined § 1346. In the over twenty years since the statute's enactment, the Courts of Appeals have been unable to come up with any unified limiting principles to contain its reach. The Skilling Court, evidently reluctant …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Publications

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

A Diva Defends Herself: Gender And Domestic Violence In An Early Twentieth-Century Headline Trial, Carolyn B. Ramsey

Publications

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend …

Humanitarian Law Project And The Supreme Court's Construction Of Terrorism, Wadie E. Said

Publications

No abstract provided.

Contempt Of Congress, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Defending The "Indefensible": Replacing Ethnocentrism With A Native American Cultural Defense, Megan H. Dearth

American Indian Law Review

No abstract provided.

Keep America Exceptional! Against Adopting Japanese And European-Style Criminalization Of Contributory Copyright Infringement, Salil K. Mehra

Vanderbilt Journal of Entertainment & Technology Law

This brief Article, written in connection with a Symposium hosted by the Vanderbilt Journal of Entertainment and Technology Law, addresses nascent criminal enforcement against contributory copyright infringement in connection with P2P file sharing. Using Judge Posner's analysis in the Aimster case as a lens, it discusses recent cases in Japan and Sweden. This Article contends that criminalization involves an inherent uncertainty involving an innovator's knowledge of, and intent for, the future uses of the platform by others. Despite the difficulty of this task, since Japan and the E.U. have seen criminal prosecutions brought against contributory infringers, it should not evoke …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman

Articles & Chapters

This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Prosecuting The Informant Culture, Andrew E. Taslitz

Michigan Law Review

Alexandra Natapoff, in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice, makes a compelling case for reform of the system by which we regulate police use of criminal informants. Indeed, as other writers have discussed, law enforcement's overreliance on such informants has led to a "snitching culture" in which informant snitching replaces other forms of law enforcement investigation (pp. 12, 31, 88-89). Yet snitches, especially jailhouse snitches, are notoriously unreliable.

International Human Rights, A "Foolproof" Death Penalty Act, And The Politics Of Capital Punishment, Russell G. Murphy

Suffolk University Law School Faculty Works

A majority of American states recognize the death penalty as a lawful and constitutional sentence for the most serious crimes committed by the most dangerous and blameworthy criminals. However, in recent years, numerous flaws in capital punishment systems have caused courts in the United States to reverse death sentences. Over one hundred death row inmates have been exonerated and released from prison. These same problems – racial bias, untrustworthy evidence, police and prosecutor misconduct, jury malfunctioning – have been joined with more philosophical notions of the limits of government and respect for human dignity to make capital punishment a human …

Section 2259 Restitution Claims And Child Pornography Possession, Dina Mcleod

Michigan Law Review

In 2009, a child pornography victim brought a criminal restitution claim against a defendant who possessed images of her abuse. The statutory provision authorizing restitution, 18 U.S.C. § 2259, had never before been used to bring a claim against a defendant who had only possessed, rather than produced or distributed, child pornography ("child pornography possession defendants"). The federal courts have not developed a consistent approach to resolving Section 2259 claims involving such defendants. This Note argues that two conceptions of traditional proximate cause doctrine can provide a framework for analyzing such claims. It examines Section 2259 claims using both a …

Hot Crimes: A Study In Excess, Steven P. Grossman

All Faculty Scholarship

Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even …

Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

This article shows that private enforcement of the U. S. antitrust laws-which usually is derided as essentially worthless-serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division of the U.S. Department of Justice.

The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of …

Who Takes The Heat? Criminal Liability For Heat-Related Deaths In High School Athletics, David Feingold

Cardozo Journal of Equal Rights & Social Justice

The note argues that criminal liability is a necessary and effective measure to address the preventable nature of heat-related deaths in high school sports. It highlights the inadequacy of current civil systems and the protective barriers of qualified immunity, which often shield coaches and schools from accountability. The vulnerability of young athletes, who rely heavily on their coaches for safety, underscores the need for stricter accountability measures to ensure their protection and reduce such tragedies.

Using Gender Equality Analysis To Improve The Wellbeing Of Prostitutes, Barbara Havelkova

Cardozo Journal of Equal Rights & Social Justice

The article presents a framework for analyzing prostitution through the lens of gender equality, aiming to improve the wellbeing of prostitutes by offering regulators and judges a tool for evaluation. It challenges the asymmetric legal treatment of prostitutes and clients, arguing that such treatment violates gender equality principles. The framework proposes symmetric treatment or measures benefiting prostitutes to address structural inequalities rooted in gender, class, race, and socioeconomic status. The analysis draws on European and common law jurisdictions, emphasizing the need for gender-conscious policies to ensure fairness and proportionality.

Raising The Bar For The Mens Rea Requirement In Common Intention Cases, Eunice Chua

Research Collection Yong Pung How School Of Law

Recently, the Court of Appeal in Daniel Vijay s/o Katherasan v. Public Prosecutor took the view that the law on common intention was not adequately settled in Singapore despite the 138-year history of s.34 of the Penal Code. It went on to give an extensive review of the cases interpreting the section as well as its Indian equivalent, before setting out the proper approach to take in "twin crime" common intention cases, focusing specifically on the mens rea element required in order to establish constructive liabilityfor the secondary crime. This case note seeks to highlight the changes brought about by …