Saturday, May 23, 2015
There is an optimal rate at which actors that indisputably break the law will be detected, prosecuted, and punished. Legal regimes optimize deterrence by calibrating three inputs: the probability of detection, the rate of prosecution, and the magnitude of punishment. Optimal-law-enforcement literature casts these three inputs as static, exogenously controlled variables, each of which is capable of being carefully manipulated — even titrated — independent of the others. This Article problematizes the singular hegemony of this traditional account. Contra extant optimal-law enforcement literature, the three foregoing deterrence inputs can (and often do) exert endogenous pressures on one another. To advance this thesis, I present a stylized account of endogenous deterrence regimes.
Friday, May 22, 2015
We like to think we own our memories: if technology someday enables us to alter our memories, we should have certain rights to do so. But our freedom of memory has limits. Some memories are simply too valuable to society to allow individuals the unfettered right to change them. Suppose a patient regains consciousness in the middle of surgery. While traumatized by the experience and incapable of speaking, he coincidentally overhears two surgeons make plans to set fire to the hospital. Assuming there is no way to erase his traumatic memories of intraoperative awareness and still prosecute the surgeons, a patient may well have a moral duty to retain the memories for the greater good. And if the patient has such a moral duty, I argue in this brief comment, then the state plausibly has the right to limit our abilities to erase memories when necessary to protect public safety or prosecute offenders.
Thursday, May 21, 2015
May criminalization constitute a violation of a constitutional right? This question has rarely been discussed directly in the legal literature. This Article offers a novel and fully developed normative framework for courts to review the constitutionality of substantive criminal law. It suggests a distinction between extra- and intra-constitutional approaches, offers a critique of existing approaches, and proposes a new intra-constitutional approach to the distinction between criminal offenses that may constitute an infringement upon constitutional rights and those that do not. The Article suggests that a constitutional right against criminalization may apply (and only apply) to activities that have substantive positive social value and do not impose any substantive social harm. The Article recommends some criteria for applying this framework.
Frank Rudy Cooper (Suffolk University Law School) has posted Always Already Suspect: Revising Vulnerability Theory (North Carolina Law Review, Vol. 93, p. 1339, 2015) on SSRN. Here is the abstract:
Martha Fineman proposes a post-identity “vulnerability” approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people’s burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary sacrifice of those overrepresented in arrest statistics for the greater good of protecting the majority from vulnerability to crime.
Thom Brooks (Durham University) has posted Involuntary Intoxication: A New Six-Step Procedure (Journal of Criminal Law 79(2): 138-146) on SSRN. Here is the abstract:
Involuntary intoxication is often misunderstood. The predominant 'orthodox' view is that involuntary intoxication should lead to acquittal for offences requiring proof of fault. Strict liability offences are therefore unaffected. This article argues the law is more complex requiring a more careful approach. The article provides a new six-step procedure to determine whether involuntary intoxication is applicable and should lead to acquittal.
Marc Hertogh (University of Groningen - Faculty of Law) has posted What Moves Joe Driver? How Perceptions of Legitimacy Shape Regulatory Compliance Among Dutch Traffic Offenders (International Journal of Law, Crime and Justice, Vol. 43, No. 2, 2015 (Forthcoming)) on SSRN. Here is the abstract:
Using survey data collected from a sample of 1,182 traffic offenders in the Netherlands, and building on the ‘procedural justice model’ which was first developed in Tyler (1990), this paper explores how perceptions of legitimacy shape regulatory compliance. The study makes three contributions to the literature. First, it is one of the few studies in which the procedural justice model is tested in Continental Europe. Second, following recent critiques in the literature, it introduces three modifications to the original model. Third, and unlike most previous studies, it is not only based on self-reporting by drivers, but includes actual evidence about their behaviour as well. With regard to the self-reported level of compliance, the present study largely confirms Tyler’s (1990) original findings. Yet with regard to the observed level of compliance, there are also important differences between both studies. These findings will be explained by shifting our focus to ‘legitimacy-in-context’ (Beetham, 1991).
Wednesday, May 20, 2015
Shaun B. Spencer (University of Massachusetts School of Law - Dartmouth) has posted The Aggregation Principle and the Future of Fourth Amendment Jurisprudence (41 New England Journal on Criminal and Civil Confinement 289 (2015)) on SSRN. Here is the abstract:
Data aggregation has played a role in several recent cases implicating one’s reasonable expectation of privacy under the Fourth Amendment. Although the cases involved disparate doctrines, they all relied on data aggregation to depart from pre-existing Fourth Amendment jurisprudence. This essay considers where the aggregation principle will take us next. After referencing the emerging debates over cell site location information, the essay considers the implications of the aggregation principle for the following types of surveillance practices: short-term, individualized location tracking; short-term but large-scale location tracking; future location tracking technologies; and the aggregation of non-location information such as communications metadata.
Paul F. Rothstein (Georgetown University Law Center) has posted Comment: The Doctrine of Chances, Brides of the Bath and a Reply to Sean Sullivan (Law Probability & Risk, Vol. 14, pp. 51-66, 2015) on SSRN. Here is the abstract:
The ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence.
It is the author's thesis in this article that the doctrine of chances — in any acceptable logical form including that described by Mr. Sullivan — does properly describe when this kind of ‘other wrongs’ evidence is relevant, and how probative it is, but that relevance and probative value where this kind of proof is offered does depend on propensity reasoning even under these theories even in the cases where they say it does not. He is not simply arguing that the jury will indulge propensity reasoning even though they are not supposed to and are instructed not to. Rather the author is arguing that propensity reasoning is a fundamentally necessary step in the inferential process they are told to perform.
I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some not so good people. So, in the past, I told students who asked whether I had ever seen The Wire: “Why should I watch a fictional version of what I (painfully) experienced as reality?” Although it took many years after the series ended, I did eventually break down and watch Season 1. In doing so, I discovered that the show is an ideal source for exploration of issues arising in three courses I teach. To date, I have used portions of Season 1 as platforms for assessing students’ comprehension of the materials in these courses.
Mark R. Fondacaro, J.D., Ph.D. , Stephen Koppel , Megan O'Toole and Joanne Crain (John Jay College - CUNY , CUNY, John Jay College of Criminal Justice , CUNY, John Jay College of Criminal Justice and CUNY, John Jay College of Criminal Justice) have posted The Rebirth of Rehabilitation in Juvenile and Criminal Justice: New Wine in New Bottles (Ohio North University Law Review, 2015 Forthcoming) on SSRN. Here is the abstract:
These are indeed exciting times for those of us interested in the reform of our juvenile and adult criminal justice systems. Innovation is in the air among legal scholars, behavioral scientists, and both legal and clinical practitioners. Not many in the legal and scientific communities seem satisfied with the status quo. Fresh thinking and new evidence-based practices generated within each of these professional domains are beginning to benefit from collaborative efforts at cross-fertilization and integration. Increasingly, policy makers seem to be taking notice and are beginning to publicize their views on the need for reform. Topics such as mass incarnation, racial bias in criminal justice, and wrongful conviction, which were not long ago highly controversial if not taboo, are being openly discussed in public by policy makers representing the entire political spectrum. A confluence of social, scientific, legal, and policy influences is beginning to pave the way for the rebirth of rehabilitation in our criminal justice system.
Tuesday, May 19, 2015
Jenny E. Carroll (University of Alabama - School of Law) has posted Brain Science and the Theory of Juvenile Mens Rea (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
This paper explains how the standards of practice in the development of mitigating evidence -- a core component of capital defense practice -- evolved from the reinstatement of the U.S. death penalty in the 1970s to the publication of the original edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in 1989.
Monday, May 18, 2015
Jennifer L. Doleac and Nicholas J. Sanders (University of Virginia (UVA) - Frank Batten School of Leadership and Public Policy and College of William and Mary) have posted Under the Cover of Darkness: How Ambient Light Influences Criminal Activity on SSRN. Here is the abstract:
We exploit Daylight Saving Time (DST) as an exogenous shock to daylight, using both the discontinuous nature of the policy and the 2007 extension of DST, to consider how light impacts criminal activity. Regression discontinuity estimates show a 7% decrease in robberies following the shift to DST. As expected, effects are largest during the hours directly affected by the shift in daylight. We discuss our findings within the context of criminal decision-making and labor supply, and estimate that the 2007 DST extension resulted in $59 million in annual social cost savings from avoided robberies.
Kaya Lurie , Breanne Schuster and Sara Rankin (Seattle University School of Law , Seattle University School of Law and Seattle University School of Law) have posted Discrimination at the Margins: The Intersectionality of Homelessness & Other Marginalized Groups on SSRN. Here is the abstract:
This brief addresses the intersectionality of homelessness and other marginalized groups. It examines six marginalized groups: racial minorities, women, individuals who identify as lesbian, gay, transgender, queer, or questioning (LGBTQ), individuals with a mental disability, incarcerated individuals, and veterans. The brief presents national and Washington State statistics to show how these six marginalized groups are represented in the homeless population compared to the general population. Moreover, it presents some of the causes of homelessness for these marginalized groups.
Andrea Dennis and Carol E. Jordan (University of Georgia Law School and University of Kentucky) have posted Encouraging Victims: Responding to a Recent Study of Battered Women Who Commit Crimes (Nevada Law Journal, Vol. 15, 2014) on SSRN. Here is the abstract:
Over many decades, domestic violence statistics have consistently revealed that women from a wide variety of backgrounds are victimized, though the rate of victimization varies depending on a woman’s particular characteristics. Despite this consistency, past and present approaches to domestic violence have failed to attend to the diverse realities of victims. Advocates and researchers first devoted their efforts toward conveying the message that while any woman could potentially become a victim of domestic violence, no woman should become a victim. They then focused on creating laws and policies granting victims greater access to the legal system and making the justice system less intimidating to victims. Legal scholars, however, have argued that not all victims have felt successes in these areas uniformly.
|1||1,549||Rethinking Presumed Knowledge of the Law in the Regulatory Age
Michael Anthony Cottone
Date posted to database: 24 Mar 2015
|2||520||'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment
Dan M. Kahan, David A. Hoffman, Danieli Evans, Neal Devins, Eugene A. Lucci andKatherine Cheng
Yale University - Law School, Temple University - James E. Beasley School of Law, Yale Law School, William & Mary Law School, Government of the State of Ohio - Court of Common Pleas and Cultural Cognition Lab, Yale Law School
Date posted to database: 22 Apr 2015
|3||484||Ten Seldom Discussed Foreign Corrupt Practices Act Facts that You Need to Know
Southern Illinois University School of Law
Date posted to database: 4 May 2015
|4||359||Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law
City University of New York - Baruch College, Zicklin School of Business
Date posted to database: 1 Apr 2015
|5||353||Norms of Computer Trespass
Orin S. Kerr
The George Washington University Law School
Date posted to database: 3 May 2015 [new to top ten]
|6||304||Washington's War on the Visibly Poor: A Survey of Criminalizing Ordinances & Their Enforcement
Justin Olson, Scott MacDonald and Sara Rankin
Seattle University School of Law, Seattle University School of Law and Seattle University School of Law
Date posted to database: 8 May 2015 [new to top ten]
|7||241||Conflict Assessment: Northern Kenya and Somaliland
Date posted to database: 4 Apr 2015 [5th last week]
|8||183||Database Infamia: Exit from the Sex Offender Registries
Wayne A. Logan
Florida State University - College of Law
Date posted to database: 15 Apr 2015 [7th last week]
|9||125||Brain Science and the Theory of Juvenile Mens Rea
Date posted to database: 8 May 2015 [new to top ten]
|10||125||Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey
Oguzhan C. Dincer andMichael Johnston
Illinois State University - Department of Economics and Colgate University
Date posted to database: 18 Mar 2015 [9th last week]
Sunday, May 17, 2015
Kelly Strader , Molly Selvin and Lindsey Hay (Southwestern Law School , Stanford Law School and Southwestern Law School) have posted Gay Panic, Gay Victims, and the Case for Gay Shield Laws (Cardozo Law Review, Vol. 36, 2015) on SSRN. Here is the abstract:
In a highly publicized “gay panic” case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first degree murder, McInerney asserted a heat of passion defense based upon King’s alleged sexual advances. The jury deadlocked, with a majority accepting McInerney’s defense.
Drawing largely upon qualitative empirical research, this article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases of the gay panic defense while also examining broader issues concerning violence against LGBTQ victims.
Saturday, May 16, 2015
Dhammika Dharmapala , Nuno M. Garoupa and Richard H. McAdams (University of Chicago Law School , Texas A&M University School of Law and University of Chicago Law School) have posted Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure on SSRN. Here is the abstract:
Criminal law enforcement depends on the actions of public agents such as police officers, but the resulting agency problems have been neglected in the law and economics literature (especially outside the specific context of corruption). We develop an agency model of police behavior that emphasizes intrinsic motivation and self-selection. Drawing on experimental evidence on punishment preferences, in which subjects reveal a heterogeneous preference for punishing wrongdoers, our model identifies circumstances in which “punitive” individuals (with stronger-than-average punishment preferences) will self-select into law enforcement jobs that offer the opportunity to punish (or facilitate the punishment of) wrongdoers. Such “punitive” agents will accept a lower salary, but create agency costs associated with their excessive zeal (relative to the public’s preferences) in searching, seizing, and punishing suspects. In our framework, the public chooses (under reasonable assumptions) to hire punitive police agents, while providing suspects with strong criminal procedure protections, thereby empowering other agents (such as the judiciary) with average punishment preferences to limit the agency costs of excessive zeal. We thus argue that intrinsic motivation and self-selection provide a possible explanation for the bifurcated structure of criminal law enforcement in which courts constrain police with pro-defendant rules of criminal procedure. We also explore various other implications of this framework.
Friday, May 15, 2015
Christopher Slobogin (Vanderbilt University - Law School) has posted A Defense of Privacy as the Central Value Protected by the Fourth Amendment's Prohibition on Unreasonable Searches on SSRN. Here is the abstract:
Katz v. United States and the accompanying turn to privacy as the lodestar of Fourth Amendment analysis have been the target of heavy criticism. The privacy standard is said to be contrary to Fourth Amendment language, history and precedent, overly elastic and thus conducive to judicial activism in either direction, and inadequate at capturing what the Fourth Amendment is really about. But the proposed alternatives to the privacy standard — ranging from a focus on property, dignity, liberty or information control to a right to security from government coercion — all have their own flaws, and in any event can almost all fit comfortably within the privacy rubric. Privacy’s capaciousness, together with its alienability, its potential for objectification, and its scalar nature, can maximize the Fourth Amendment’s flexibility in dealing with the regulatory challenges posed by both traditional and modern law enforcement practices.