Analysis and Commentary on Criminal Law

To Honor First Amendment Rights, Cleveland and Other Cities Should Focus on Flash Mob Violence, Not Instant Messaging

Justia columnist and U. Washington law professor Anita Ramasastry comments on the Cleveland, Ohio, City Council’s recent efforts to pass ordinances that penalize the convening of flash mobs that become violent or disruptive. Ramasastry explains the City Council’s original proposed ordinance, and why the city’s mayor vetoed it, and notes that there are significant problems with the City Council’s second attempt at a flash-mob ordinance, as well. She advocates an approach that focuses on action, not speech, when it comes to flash mobs, and reminds us that the “chilling effect” of overly broad ordinances can end up stopping First-Amendment-protected speech before it starts.

Towels Under Tailbones? Naked San Franciscans Protest Proposed Restrictions on Public Nudity

Justia columnist and Hofstra law professor Joanna L. Grossman, and Justia guest columnist and Stanford law professor Lawrence M. Friedman comment on American law regarding public nudity, in the wake of a new proposed ordinance on this topic. The ordinance—put forward by Scott Wiener, the new city supervisor for San Francisco’s Castro District—would forbid naked people from entering restaurants. It would also require naked people to put down a towel or other barrier before sitting down in public—for example, while riding a city bus. In addition to discussing the proposed San Francisco ordinance, Grossman and Friedman discuss current California state law on nudity, which covers indecent exposure only if it is lewd (with additional rules applying to restaurants and “adult” establishments). They also cover the Berkeley, California, regulation on nudity that was prompted by the repeated nudity of a man nicknamed “The Naked Guy,” and consider nudism in history.

The U.S. Supreme Court Considers the Constitutionality of Unreliable Eyewitness Identifications: Does a Lack of Police Misconduct Rule Out a Due Process Claim?

Justia columnist and Cornell law professor Sherry Colb comments on a fascinating criminal procedure case that the U.S. Supreme Court will resolve during this coming term. The case, Perry v. New Hampshire, will answer the following question: If an eyewitness first identifies a perpetrator under highly suggestive circumstances that seriously compromise the reliability of the identification, but the police did not orchestrate those circumstances, should a court then exclude the identification evidence? Or, stated differently, is police misconduct necessary to the successful due process exclusion of unduly suggestive eyewitness identification evidence? Colb explains the reasons why we might—and might not—require police misconduct before this type of constitutional claim may be made, and notes that the issue here is of great importance, as empirical research has now exposed the central role of mistaken eyewitness identifications in wrongful convictions. Colb also makes a case that, in the end, the best resolution here may be to inform jurors of the problems with suggestive identifications, and then simply have them evaluate such identifications accordingly, as they do with other unreliable evidence.

Why News Corp.’s Board of Directors Is Clearly Still Under Rupert Murdoch’s Control

Justia columnist and former counsel to the president John Dean continues his commentary on the scandal regarding the reported hacking of voicemail messages by News Corp. employees. In this column, Dean contends that—despite Rupert Murdoch’s strong suggestions to the contrary—the Board of Directors of News Corp. is far from independent of Murdoch himself. Even so-called independent directors, Dean explains, have close ties to the Murdochs, and have been described by reporters as “Friends of Rupert.” Dean focuses, in particular, on the independent director Viet Dinh. And overall, he argues, citing a number of experts, that the News Corp. board’s standards when it comes to corporate governance and independent directors, are far too low.

All Roads Lead to Accountability

Justia columnist and Cardozo law professor Marci A. Hamilton urges that the Catholic Church urgently needs to take responsibility—and foster an ethic of accountability—regarding clergy child-sex-abuse cases. In describing the path that she argues the Church must take, Hamilton compliments a recent speech by Irish Prime Minister Enda Kenny, and a book by Jason Berry on money and the Church. As she explains, these writings, too, call for responsibility and accountability from the Church, and for the enforcement of civil law by the courts, in clergy child-sex-abuse cases.

The Strauss-Kahn Accuser’s Defamation Suit Against the New York Post: As a Matter of Strategy, Should It Have Been Filed Now, Later, or Never?

Justia columnist, attorney, and author Julie Hilden comments on a recent development in the criminal case against Dominique Strauss-Kahn: The accuser has filed a defamation claim against the New York Post for articles suggesting she has worked as a prostitute. Hilden comments on the timing of the defamation action, and the decision, in that action, to target only the Post’s claims that she is a prostitute, and not its other potentially damaging claims about her—including its claims that she has lied.

Caylee’s Law and What We Really Need to Do Now to Better Protect Children: Three Proposed Legal Reforms

Justia columnist and Cardozo law professor Marci Hamilton comments on some of the lessons of the Casey Anthony trial, regarding protecting children. Hamilton begins by agreeing with calls for a law imposing strict punishment upon parents whose children go missing, but who never, or belatedly, tell the authorities their children are gone. She then goes on to suggest other reforms: a RICO amendment to sweep in child sex abuse, the institution of mandatory sex-abuse education within the sex education curriculum in schools, and the abolition of statutes of limitations for child sex abuse.

Hawaii’s Battle Over Its Statutes of Limitations for Child Sex Abuse: Why the Legislature Was Right to Unanimously Vote for Reform, and Why the Governor Should Not Fulfill His Veto Threat

Justia columnist and Cardozo law professor Marci Hamilton comments on the situation unfolding in Hawaii with respect to the state's laws regarding statute of limitations for child sex abuse. As she explains, Hawaii's House and Senate each unanimously passed a bill that would create a two-year-long window of opportunity for child sex-abuse victims to file civil claims against their abusers, and against those who aided the abusers, even if the former statute of limitations had previously expired; and that would eliminate civil statutes of limitations entirely. But Hamilton – who has worked on the legislation with Sen. Maile Shimabukuro, abuse survivors, and others over the past year – notes that Hawaii governor Neil Abercrombie has issued a statement indicating that he will veto the bill. Hamilton takes strong issue with his reasons for doing so, and contends that he should change his mind.

A Disingenuous Dissent: The U.S. Supreme Court Says a Suspect’s Youth Is Relevant to Miranda Rights

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent, 5-4 decision in J.D.B. v. North Carolina. There, the Court held that when police interrogate a suspect under the age of eighteen, the suspect’s youth bears on the question whether he was in “custody” at the time-- and was therefore entitled to hear the Miranda warnings before questioning began. Colb discusses the role of custody and interrogation in Miranda's protections, and explains the arguments that the majority and dissenting Justices marshaled to justify their respective positions. In addition, she contends that the dissenters in the case -- four conservative Justices -- essentially opined as they did due to a fundamental dislike for Miranda itself, rather than due to the wish that they cited for greater certainty and clarity in Miranda's application.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more