Friday, May 26, 2006
Rutgers CrimProf Vera Bergelson has posted the above-titled article on SSRN. Here's the abstract:
People’s right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts - from sadomasochism and cannibalism to experimental medical treatment and mercy killing.
Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized for its arbitrary scope, outdated rationales, and potential for moralistic manipulation. Yet, despite those criticisms, no principled alternative has been worked out. This article is an attempt to develop a set of normative requirements for a new rule governing consensual bodily harm and a general defense of consent.
The new rule would treat valid (voluntary and rational) consent of the victim as a defense of partial or complete justification. Partial justification is warranted by the mere fact that consensual harm does not involve at least one aspect of a paradigmatic offense, namely a rights’ violation. The victim was a “co-author” of his own injury and thus the perpetrator should not bear full responsibility for it. Complete justification, on the other hand, would require that, in addition to the victim’s consent, the perpetrator had a “good reason” for his harmful action: he intended to achieve a better balance of harms/evils and benefits and, in fact, managed to achieve it. This article rejects the absolute character of today’s law. Instead, it promotes a balancing test that takes into account the severity of harm to the victim’s interests and dignity as well as the importance of the reasons that caused the harmful act.
To obtain paper, click here.
Thursday, May 25, 2006
From AP: MARATHON, Fla. - A judge on Tuesday dismissed the conviction of a Cuban national wrongly accused of a 1982 rape but told him he would have to stay behind bars until immigration officials sort out his legal status. Orlando Bosquete, 52, expressed frustration at his extended incarceration but said he was glad that DNA evidence had proved he was innocent. “It is very important to me to forgive because I have to start a new life,” Bosquete said after Tuesday’s hearing. Rest of story.... [Mark Godsey]
Tuesday, May 23, 2006
On April 7, 2006, Dean Frank Wu of Wayne State University School of Law presented Professor Elaine Chiu with an award for winning for the Inaugural Scholarly Paper Competition of the Conference of Asian Pacific American Law Faculty [CAPALF] held at Wayne State University in Detroit, Michigan. Professor Chiu won for her paper entitled Culture As Justfication, Not Excuse in which she urges the criminal law to adopt a new approach to how it regards the claims of defendants that their acts are cultural practices based on the norms and values of their minority cultures. Such claims should be thought of as claims of justification and not as pleas for excuse.
In addition to the award, Professor Chiu opened the conference with a presentation of her paper. The paper will be published in the October 2006 issue of the American Criminal Law Review.
Monday, May 22, 2006
From the Washington Post: The Supreme Court ruled unanimously Monday that police do not need a warrant to go into a home to break up a bloody fight. Justices said that a "melee" that Brigham City, Utah, police officers saw through a window early one morning in 2000 justified rushing in without knocking first. Rest of story... [Mark Godsey]
Weekend Edition Sunday, May 21, 2006 · Federal prosecutors are trying to convince several current targets to give up attorney-client privilege in exchange for easier treatment. The American Bar Association says the tactic is not fair. Listen to story here. [Mark Godsey]
Sunday, May 21, 2006
Brandon L. Garrett of Virginia and Tania Tetlow of Tulane have posted the above-titled article, forthcoming in the Duke Law Journal, on SSRN. Here's the abstract:
The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. For months the court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. We present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina, based in part on a series of interviews conducted with officials at all levels of the New Orleans criminal system. Not only did this perfect storm illuminate how unprepared our local criminal systems remain for a severe natural disaster or terrorist attack, but it raised unique and unexplored constitutional questions. We argue that the roles of constitutional criminal procedure and doctrines of federalism invert during such an emergency. Criminal procedure rules served less to constrain local criminal justice actors than to preserve normalcy, while deferential rules rooted in federalism had the unanticipated effect of hindering provision of critical federal emergency assistance. We conclude by imagining systems designed to safeguard the provision of local criminal justice during emergencies.
To obtain the paper, click here. [Mark Godsey]
This week's top 5 crim papers, with number of recent downloads on SSRN, are:
|1||147||The Poverty of the Moral Stimulus |
Georgetown University - Law Center,
Date posted to database: April 19, 2006
Last Revised: April 27, 2006
|2||143||Loyalty to One's Convictions: The Prosecutor and Tunnel Vision |
DePaul University - College of Law,
Date posted to database: March 16, 2006
Last Revised: March 17, 2006
|3||100||Muslim Profiles Post-9/11: Is Racial Profiling an Effective Counterterrorist Measure and Does it Violate the Right to be Free from Discrimination? |
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: March 30, 2006
Last Revised: April 19, 2006
|4||83||Crawford's Triangle: Domestic Violence and the Right of Confrontation |
University of Maine School of Law,
Date posted to database: April 10, 2006
Last Revised: April 18, 2006
|5||80||The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence |
University of California, Berkeley, School of Law (Boalt Hall),
Date posted to database: April 19, 2006
Last Revised: May 3, 2006