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Defining Crimes, 4th editon
Get PDFDefining Crimes, by the distinguished author team of Joseph L. Hoffmann (Indiana) and William J. Stuntz (late of Harvard), breaks from the tradition of Model Penal Code-centric casebooks and focuses instead on the rich intellectual and theoretical issues that arise from how crimes actually get defined and applied today by state and federal legislatures, trial and appellate courts, police, prosecutors, defense lawyers, and juries. The innovative approach of Defining Crimes enables the in-depth study of the problems and issues that affect the day-to-day contemporary practice of criminal law.
New to the 4th edition: Three online chapters: Gun Crimes (formerly Chapter 8), Hate Crimes, and Crimmigration New section about the crime of receiving stolen property in Chapter 5 (Property Crimes) Principal case—U.S. v. Alvarez—about conspiracy in Chapter 7 (Inchoate Crimes and Accomplice Liability) New section about consent in Chapter 10 (Defenses), discussing the consent defense to crimes other than rape and sexual assault Notes discussing several prominent recent cases, including those involving Tamir Rice (2014), Brock Turner (2015), Amber Guyger (2018), Michael Drejka (2018), Michelle Carter (Mass. S.Ct. 2019), and George Floyd (2020)Extended excerpt from Kahler v. Kansas in Chapter 10 (Defenses), in which the Supreme Court upheld Kansas’s limited version of the insanity defense against a due process challenge, and notes about the Court’s recent decisions in Rehaif v. United States and Kelly v. United States Notes discussing recent constitutional challenges to the use of criminal law against persons experiencing homelessness.https://www.repository.law.indiana.edu/facbooks/1239/thumbnail.jp
The Architecture of Judicial Ethics
Get PDFIn 1999, Professor Stephen Burbank wrote an article entitled The Architecture of Judicial Independence. It is a foundational piece that gave structure to what was then an understudied field. At the heart of that article is a profound insight: stable and enduring judicial systems are the product of forces in constructive tension. Thus, in the context of judicial administration, Burbank conceptualized judicial independence with reference to judicial accountability, and characterized pressure points in the relationship between them as complementary, not contradictory; and in later work, he made a similar point about the interplay between the law and policy in judicial decisionmaking. I could pay homage to Steve in this symposium by praising his many contributions to our understanding of judicial administration and decisionmaking. But I did that recently in the online edition of this law review, and I am concerned that if I gave his ego yet another pump, his head would pop and deflate when he cut himself shaving. Instead, my ambition for this Article is to honor Steve’s scholarly legacy by emulating his approach to illuminate the architecture of an under-theorized subset of the judicial independence and accountability literature: judicial ethics
Research Handbook on Trademark Law Reform
No full textThis follow-up to Graeme B. Dinwoodie and Mark D. Janis’s successful book Trademark Law and Theory examines reform of trademark law from a number of perspectives and across many jurisdictions. In so doing, it analyses the most important current and future issues in the field, both providing normative frameworks for the development of trademark law and concrete proposals for reform.
This Research Handbook is organized into three thematic parts discussing different areas of reform: the trademark registration process; subject matter boundaries and trademark protectability; and trademark scope and enforcement. Leading trademark law scholars from across the globe investigate important topics such as intermediary liability, trademark protection for product design, conceptions of the hypothetical “average consumer”, and trademark depletion and congestion.
Scholars and students of intellectual property law will find the provocative and insightful thinking in this Research Handbook stimulating and valuable. The practical suggestions for future reform will also be of interest to trademark lawyers, policymakers, brand managers and other marketing professionals.https://www.repository.law.indiana.edu/facbooks/1258/thumbnail.jp
Enhanced Public Defense Improves Pretrial Outcomes and Reduces Racial Disparities
Get PDFNumerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.
This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the Defender Association of Philadelphia implemented a pilot program wherein “bail advocates” interviewed defendants shortly after arrest to collect individualized information that could be used to more effectively argue for pretrial release.
Using administrative data covering nearly 100,000 criminal cases and a quasi-experimental research design that exploits the random shuffling of arraignment shifts covered by advocates during the pilot, we measure the causal impacts of the advocates on pretrial release, failure to appear, case outcomes, and future crime. Bail advocates did not reduce detention rates (at least on average) but did substantially reduce clients’ likelihood of bail violation (-64%) and future arrest (- 26%). Bail advocates also reduce racial disparities in pretrial detention. Interviews with prosecutors, defenders, and bail advocates suggest that these impacts likely represent both better understanding of defendant risk and needs by magistrates and a better sense of procedural justice by defendants.
These results suggest that bail advocates might achieve a key objective desired by proponents of risk assessment tools—the provision of better information to pretrial decisionmakers—without triggering comparable concerns. A workable solution to the problem of improving pretrial outcomes may lie with an old mainstay of the criminal process—the defense attorney
Reconsidering NEPA
Get PDFThe National Environmental Policy Act (NEPA) ushered in the modern era of environmental law. Thanks to its environmental impact statement (EIS) provision, it remains, by far, the most litigated environmental statute. Many administrations have sought to weaken the law. The Trump administration, for example, put into place regulations that strictly limit the EIS process, which the Biden administration seems poised to roll back. For the most part, however, NEPA has shown remarkable staying power and resilience since its passage just over fifty years ago. As a result, its legislative history remains relevant. But the accepted history of NEPA is deeply flawed.
By bringing the history to light, this Article makes three contributions. First, relying on both original primary sources and a thorough review of the literature, we provide a nuanced and engaging history of the EIS provision, correcting common misconceptions of the accepted story. Second, we show why understanding this more accurate history of the Act’s key provision can rebut major threats to NEPA and the regulations that govern it, such as those introduced during the Trump administration. Third, our granular history of NEPA provides an ideal experiment to test the accuracy of traditional canons of legislative history. We find that most canons fail to recognize the most critical aspects of NEPA’s history. Positive political theory–derived canons, on the other hand, most accurately capture the actual legislative history
Funding Access to Arbitration: Possibility of Third Party Funding for International Commercial Arbitration in Thailand
No full textWith the growth of cross-border commercial transactions in an increasingly connected world, the use of international commercial arbitration is on the rise. Considering the cost and complexity of international arbitration proceedings and the growing demands on parties to manage the potentially high costs and risks associated with arbitration, a new emerging third party funding (TPF) mechanism has proved to be a practical solution for dealing with such concerns. Essentially, TPF not only provides claimants with financial support in order to gain access to arbitration, but also opens up commercial options for parties to mitigate risks, control the financial exposure associated with arbitration, manage cash flow, and take legal fees and expenses off the company’s balance sheet. Additionally, the involvement of the funder can add real value to the management and resolution of arbitration claims, by allowing parties to have access to the necessary expertise and specialists’ skills, as well as experiences supported by the professional funders. It comes as no surprise then that TPF has become a valuable tool and has been utilized both by capital-constrained claimants as a means to help overcome the cost barrier to accessing arbitral justice, and by well-resourced businesses as an effective financial and risk management tool.
As TPF for international commercial arbitration has not yet gained its place in Thailand, the aim of this dissertation is to determine the importance of TPF development in the Thai context, examine its scope of growth and prospects for further development, and ultimately propose to authorized policymakers an appropriate reform that would be needed to accommodate the emergence of the funding industry in Thailand.
Considering the global trends in endorsing the use of TPF in international commercial arbitration, the time has come for Thailand to open its doors to TPF and recognize its utility. The opening up of TPF could make Thailand become an appealing competitive option for both Thai and foreign parties that have disputes with parties based in Asia and, in turn, would promote economic activity in the country. Despite this positive outlook, the legal status of TPF for international arbitration under Thai law remains unclear. Such a lack of a definitive legal certainty and clear regulatory framework for TPF can potentially make Thailand less attractive and competitive as a preferred arbitral venue of choice, discouraging the creation of a market for TPF within Thailand. To eliminate that uncertainty, the author, thus, advocates for legislative reform to make it clear that TPF for international arbitration seated in Thailand is permitted and to establish corresponding legislative framework to minimize the potential risks of the funding activities. To this end, the legislative change will provide businesses with an alternative financing option for international arbitration, allowing Thailand to join the global market and strengthen its position as one of the leading arbitral jurisdictions in Asia
