CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, September 24, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

 

Rank Downloads Paper Title
1 279 Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016 
2 217 What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016
3 194 When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 7 Sep 2016 
4 122 A Theory of Bribery
Deborah Hellman
University of Virginia - School of Law
Date posted to database: 25 Aug 2016
5 101 How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan and Peter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016 [7th last week]
6 100 The Place for Neuroscience in Criminal Law
Deborah W. Denno
Fordham University School of Law
Date posted to database: 18 Jul 2016 [8th last week]
7 85 Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters
Craig Forcese and Leah Sherriff
University of Ottawa - Common Law Section and Independent
Date posted to database: 29 Aug 2016 [9th last week]
8 80 Why Lenity Has No Place in the Income Tax Laws
Andy Grewal
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [10th last week]
9 76 Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules
Stephanos Bibas
University of Pennsylvania Law School
Date posted to database: 2 Sep 2016 [new to top ten]
10 66 What Is Criminal Law About?
Guyora Binder and Robert Weisberg
University at Buffalo Law School and Stanford Law School
Date posted to database: 3 Aug 2016 [new to top ten]

 

September 24, 2016 | Permalink | Comments (0)

Friday, September 23, 2016

Shearing & Stenning on Modern Private Security

Clifford Shearing and Philip Stenning (Griffith Institute of Criminology and Griffith University) have posted Modern Private Security: Its Growth and Implications (In: Tonry, M. & Morris, N. Eds. Crime and Justice: An Annual Review of Research, Vol. 3. Chicago: University of Chicago Press, 193-245) on SSRN. Here is the abstract:

On the North American continent, in Europe and elsewhere, the dramatic growth in private security in the past several decades has reshaped the structure and function of modern policing. The development of private security has been facilitated by fundamental shifts in the nature of property relations. These changes have encouraged the development of a preventative mode of policing consistent with the principles and hopes of nineteenth-century police reformers, but they also suggest that we are moving in the direction of a new disciplinary society and raise fundamental questions with respect to sovereignty, justice, and individual liberty now almost entirely unrecognised. In particular, the legal institutions regarding private property operate to enhance the potential threat to individual liberty posed by the development of modern private security.

September 23, 2016 | Permalink | Comments (0)

Loughnam & Ward on Psychiatry and Criminal Responsibility

Arlie Loughnan and Tony Ward (University of Sydney - Faculty of Law and University of Hull - School of Law) have posted Emergent Authority and Expert Knowledge: Psychiatry and Criminal Responsibility in the UK (International Journal of Law and Psychiatry, Vol. 37, No. 1, pp. 25-36, 2014) on SSRN. Here is the abstract:

In the UK context, the rise of the discipline and practice of forensic psychiatry is intimately connected with the concurrent development of principles and practices relating to criminal responsibility. In this article, we seek to chart the relationship between psychiatry and the principles and practices of criminal responsibility in the UK over the early modern, modern and late modern periods. With a focus on claims about authority and expert knowledge around criminal responsibility, we suggest that these claims have been in a state of perpetual negotiation and that, as a result, claims to authority over and knowledge about criminal non-responsibility on the part of psychiatrists and psychiatry are most accurately understood as emergent and contingent. The apparent formalism of legal discourse has tended to conceal the extent to which legal policy has been preoccupied with maintaining the primacy of lay judgments in criminal processes of evaluation and adjudication. While this policy has been somewhat successful in the context of the trial – particularly the murder trial – it has been undermined by administrative procedures surrounding the trial, including those that substitute treatment for punishment without, or in spite of, a formal determination of criminal responsibility.

September 23, 2016 | Permalink | Comments (0)

Leo on Wrongful Convictions

Leo richardRichard A. Leo (University of San Francisco - School of Law) has posted The Criminology of Wrongful Conviction: A Decade Later (Journal of Contemporary Criminal Justice, 2017, (Forthcoming)) on SSRN. Here is the abstract:

This article reflects on the author’s 2005 article, “Rethinking the Study of Miscarriages of Justice,” which sought to describe what scholars empirically knew at that time about the phenomenon, causes and consequences of wrongful convictions in America. The 2005 article argued that the study of wrongful convictions constituted a coherent academic field of study and set forth a vision for a more sophisticated, insightful and generalizable criminology of wrongful conviction.

In this current article, the author revisits the ideas first developed in “Rethinking the Study of Miscarriages of Justice” in order to evaluate what scholars have learned about wrongful convictions in the last decade, and what challenges lie ahead for developing a more robust criminology of wrongful conviction. The article concludes that there have been significant theoretical, methodological and substantive advances in the last decade, but that a root cause analysis of wrongful convictions has yet to come to fruition and urges empirical scholars to begin to study other sources of error and inaccuracy in the criminal justice system. Scholars should develop a criminology of erroneous outcomes, not just of erroneous conviction. By studying both sets of outcomes, scholars can improve accuracy and reduce errors across the board.

September 23, 2016 | Permalink | Comments (0)

Thursday, September 22, 2016

Loughnan on Veterans as Defendants

Arlie Loughnan (University of Sydney - Faculty of Law) has posted 'Society Owes Them Much': Veteran Defendants and Criminal Responsibility in Australia in the Twentieth Century (Critical Analysis of Law, Vol. 2, No. 1, pp. 106-134, 2015) on SSRN. Here is the abstract:

Criminal responsibility now forms the subject of a rich vein of socio-historical scholarly work. But finding concrete ways to grasp the social dimension of criminal responsibility has proved challenging. This article presents one way of examining the social dimension of responsibility practices in criminal law: taking a social, rather than a traditional, or typical, legal unit of analysis, it presents a study of returned service personnel charged with serious offenses after returning home to Australia. I argue that, premised on veterans as a distinct social category, ex-soldiers are accorded special status in criminal adjudication and sentencing practices — as “veteran defendants.” The special status of “veteran defendants” has two substantive dimensions: “veteran defendants” as über-citizens, civic models or exemplars, to whom gratitude is owed and who generate responsibility in others involved in the adjudication and evaluation process, on the one hand, and legal persons with “diminished capacity” who have impaired or reduced responsibility for crime, on the other hand. These two substantive dimensions of the specialness of “veteran defendants” are underpinned by a formal quality of “veteran defendants” — that they are “see-through subjects,” both more known and more knowable than other defendants. In the Australian context, there is a historical interplay between the two substantive dimensions of the specialness of “veteran defendants,” with the latter becoming more prominent over time.

September 22, 2016 | Permalink | Comments (0)

Capers on The Under-Policed

Capers i bennettI. Bennett Capers (Brooklyn Law School) has posted The Under-Policed (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:

While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way. Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities? Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice? If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed? Finally, how might those conversations impact the issue du jour, mass incarceration? This essay concludes by offering some suggestions for reducing mass incarceration.

September 22, 2016 | Permalink | Comments (0)

Hessick on Vagueness Principles

Hessick carissaCarissa Byrne Hessick (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Vagueness Principles (Arizona State Law Journal, Vol. 50, 2017 Forthcoming) on SSRN. Here is the abstract:

Courts have construed the right to due process to prohibit vague criminal statutes. Vague statutes fail to give sufficient notice, lead to arbitrary and discriminatory enforcement, and represent an unwarranted delegation to law enforcement. But these concerns are hardly limited to prosecutions under vague statutes. The modern expansion of criminal codes and broad deference to prosecutorial discretion imperil the same principles that the vagueness doctrine was designed to protect. As this Essay explains, there is no reason to limit the protection of these principles to vague statutes. Courts should instead revisit current doctrines which regularly permit insufficient notice, arbitrary and discriminatory enforcement, and unwarranted delegations in the enforcement of non-vague criminal laws.

September 22, 2016 | Permalink | Comments (0)

Wednesday, September 21, 2016

Vandevort on Implied Consent and Sexual Assault

Lucinda Vandervort (University of Saskatchewan) has posted Book Review ― Michael Plaxton, Implied Consent and Sexual Assault: Intimate Relationships, Autonomy, and Voice. Montreal & Kingston: McGill-Queen's University Press, 2015 (Canadian Journal of Women and the Law, Forthcoming) on SSRN. Here is the abstract:

This is a review and critical commentary on Michael Plaxton's 2015 book, entitled Implied Consent and Sexual Assault, in which Plaxton proposes that the legal definition of sexual consent be amended to permit sexual partners to define the terms and conditions of sexual consent in accordance with private "normative commitments" between themselves. The proposed "reform" is intended to permit an individual to agree to be a party to sexual activity that would otherwise constitute sexual assault under Canadian law. For reasons explained in the review, this reviewer concludes that Plaxton's proposal and the rationale he presents in support of its adoption are unpersuasive.

September 21, 2016 | Permalink | Comments (0)

Sweeney on Adultery and Fornication Laws

Sweeny joanneJoanne Sweeney (University of Louisville) has posted Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws (46 Loy. U. Chi. L.J. 127 (2014)) on SSRN. Here is the abstract:

Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.

September 21, 2016 | Permalink | Comments (0)

Hatzis on Moral Externalities and Enforcing Morality

Aristides N. Hatzis (University of Athens - Department of Philosophy & History of Science) has posted Moral Externalities: An Economic Approach to the Legal Enforcement of Morality (Law and Economics: Philosophical Issues and Fundamental Questions. Edited by Aristides N. Hatzis & Nicholas Mercuro. London/New York: Routledge, 2015. Pp. 226-244) on SSRN. Here is the abstract:

In this paper I examine a number of economic arguments for the legal regulation of morality. Firstly, I present the harm principle as it was famously defined by John Stuart Mill, not only as a principle for a liberal objective criminal law but as a guiding principle for political liberalism. I call Mill’s principle, the “liberal principle” to differentiate it from the “democratic principle” of majoritarian collective decision-making. Even though these two principles are antagonistic in contemporary liberal democracies they also have a symbiotic relationship. After discussing the critique to the liberal principle by legal paternalists and legal moralists, I examine an additional argument in favor of a moralistic view of the law, the “moral externalities” argument. This is a quite powerful and interesting argument which is based on amoralistic grounds and it is defended by major law & economics scholars, among others. I am linking this argument to Sen’s impossibility of Paretian Liberal theorem and the traditional moralistic arguments developed by philosophers and lawyers (Stephen, Devlin). I rebut these arguments by defending a narrow version of the right to self-ownership based on the Coase theorem as this was reconstructed and used by Richard Posner and Guido Calabresi. The problem with welfarist moralistic argument is that they lead to the assignment of rights to a moral majority under the assumption that this would maximize total welfare. But this undermines Coasean dynamics because of the creation of open classes of right holders. In addition, the external effects that “immorality” can create are value effects, not physical effects. My conclusion is not a system of moral anarchy, but an appeal to the importance of “establishing closed and identified classes of rights holders.” This can be achieved by assigning the right to self-ownership to individuals themselves (“natural owners”), instead of making society, i.e. a “moral majority” a co-owner. An auxiliary objective is to show how law & economics literature can be fruitfully used in the discussion of issues that are considered prima facie irrelevant to the economic approach.

September 21, 2016 | Permalink | Comments (0)

Place on Post-Conviction Review

Place thomasThomas M. Place (Pennsylvania State University, Dickinson Law) has posted Commonwealth V. Holmes and the Rule of Deferral: Short Sentences, Long Sentences and the Illusory Nature of the Good Cause Exception on SSRN. Here is the abstract:

In the mid-1950s, the American Bar Association reported that state procedures were "wholly inadequate" in failing to provide defendants "genuine opportunities" to raise constitutional challenges to their conviction or sentence. In 1965, Justice Clark concluded that given the great variations in scope and availability, state post-conviction remedies were "entirely inadequate." Justice Brennan went further and called for the adoption of state procedures that were "swift . . . simple" and "sufficiently comprehensive to embrace all federal constitutional claims" and "eschew rigid and technical doctrines of forfeiture, waiver, or default." Like many states at the time, Pennsylvania lacked a uniform process by which defendants could challenge their convictions. To address this problem, in 1966, the legislature enacted the Post Conviction Hearing Act (PCHA), which provided the first comprehensive procedure to hear and decide challenges to convictions and sentences imposed "without due process of law." In 1988, the PCHA was modified in part, repealed in part, and renamed the Post Conviction Relief Act (PCRA). The one-year filing period was added to the PCRA in 1995,7 and a later amendment authorized post-conviction DNA testing. By 2002, Pennsylvania had a comprehensive and easily invoked system of review. All defendants, without regard to the length of the sentence imposed, could obtain review of challenges to their convictions or sentences initially by direct appeal guaranteed by the Pennsylvania Constitution, and later, for defendants in custody, by seeking collateral relief under the PCRA.

Notwithstanding the constitutional guarantee of direct appeal, in 2002, in Commonwealth v. Grant, the Supreme Court of Pennsylvania significantly restructured review of errors occurring during trial. In Grant, the court closed direct appeal to claims of trial-counsel ineffectiveness and instead deferred such claims to the post-conviction process governed by the PCRA.

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September 21, 2016 | Permalink | Comments (0)

Slane on Bias Crimes and Online Communication

Andrea Slane (University of Ontario Institute of Technology (UOIT), Legal Studies) has posted Motion to Dismiss: Bias Crime, Online Communication, and the Sex Lives of Others in NJ v Ravi (in Valerie Steeves and Jane Bailey, eds. eGirls, eCitizens: Putting Technology, Theory and Policy Into Dialogue with Girls’ and Young Women’s Voices. (University of Ottawa Press, 2015): 253-280) on SSRN. Here is the abstract:

In 2010, first-year Rutgers University student Dharun Ravi surreptitiously used his webcam to observe his roommate, Tyler Clementi, having a sexual encounter with another man in the dorm room they shared. Criminal charges laid against Ravi included four counts of invasion of privacy, each enhanced by bias intimidation on the basis of Clementi's sexual orientation. He denied all charges and refused a plea deal, publicly insisting that he did not harbour any prejudice against gay people. As the case proceeded to court, the defence filed a series of motions attempting to have the case dismissed, arguing that the evidence did not support the charges, especially those regarding bias. This motion record contains a large quantity of online communications evidence. This chapter elaborates on legal arguments put forward by the defence in relation to the bias intimidation charges, focusing on how the online communications evidence operates in relation to the parties' efforts to deny or affirm a finding of bias intimidation. That evidence provides a rich opportunity to consider how online communications and associated offline behaviours challenge legal understandings of what constitutes criminal activity online.

September 21, 2016 | Permalink | Comments (0)

Tuesday, September 20, 2016

Ouziel on Jury Evaluation of Law Enforcement

Ouziel laurenLauren M. Ouziel (Temple University - James E. Beasley School of Law) has posted Beyond Law and Fact: Jury Evaluation of Law Enforcement (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:

Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers – police and prosecutors – as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role – along the continuum between “fact-finding” and “law-finding” – is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. Over time, the criminal jury’s role has evolved within the surrounding criminal enforcement environment. Jury evaluation of law enforcement is an adaptation in that process; it arose, and persists, because the system needs it. This insight should inform our approach. Rather than resisting enforcement-finding, or mistaking it for something else, we should instead accept, accommodate and even leverage it. Institutional design should balance potential hazards against systemic benefits. And doctrine should enable courts to openly and transparently balance the need for jury evaluation of law enforcement against potentially competing adjudicative values.

September 20, 2016 | Permalink | Comments (0)

Appleman on Criminal Justice Debt

Appleman lauraLaura I. Appleman (Willamette University College of Law) has posted Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System (Boston College Law Review, Vol. 57, 2016, Forthcoming) on SSRN. Here is the abstract:

Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden. Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.

September 20, 2016 | Permalink | Comments (0)

Green on Ethics for Death-Penalty Defense Lawyers

Green bruceBruce A. Green (Fordham University School of Law) has posted Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers? (Georgetown Journal of Legal Ethics, Vol. 29, No. 527, 2016) on SSRN. Here is the abstract:

State ethics codes based on the ABA Model Rules of Professional Conduct address lawyers’ work in advocacy but do not target lawyers’ work in particular areas of advocacy or in other specialized practice areas. For more than forty years, critics have asserted that existing ethics rules are too superficial and should be supplemented by specialized rules. This article examines the utility of specialized ethics rules for one particular sub-specialty — death-penalty defense practice. After identifying arguments for and against a specialized ethics code for death-penalty cases, the article analyzes the arguments in the context of a particular ethics dilemma that some death-penalty defense lawyers have encountered — namely, whether to pursue post-conviction relief on behalf of an ambivalent or unexpressive mentally-ill death-row inmate. The article finds persuasive reasons for courts to develop specialized rules that would provide death-penalty defense lawyers more clarity in how to address this and other ethics dilemmas. Recognizing that courts will likely remain indifferent to the idea of developing specialized ethics rules, however, the article concludes by identifying other ways for courts to mitigate the uncertainties that specialized rules would address.

September 20, 2016 | Permalink | Comments (0)

Hendry & King on Asset Forfeiture

Jennifer Hendry and Colin King (School of Law, University of Leeds and Sussex Law School) have posted How Far is Too Far? Theorising Non-Conviction-Based Asset Forfeiture ((2015) IJLC 11(4) 398-411) on SSRN. Here is the abstract:

Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement's armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil / criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from systems-theoretical perspective. This contribution makes use of systems theory’s unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.

September 20, 2016 | Permalink | Comments (0)

Donohue on The Fourth Amendment in a Digital World

Donohue lauraLaura Donohue (Georgetown University Law Center) has posted The Fourth Amendment in a Digital World (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:

Fourth Amendment doctrines created in the 1970s and 1980s no longer reflect how the world works. The formal legal distinctions on which they rely — (a) private versus public space, (b) personal information versus third party data, (c) content versus non-content, and (d) domestic versus international — are failing to protect the privacy interests at stake. Simultaneously, reduced resource constraints are accelerating the loss of rights. The doctrine has yet to catch up with the world in which we live. A necessary first step for the Court is to reconsider the theoretical underpinning of the Fourth Amendment, to allow for the evolution of a more effective normative framing. Failure to do so will mean the continued retraction of Fourth Amendment protections.

September 20, 2016 | Permalink | Comments (0)

Larcombe et al. on Redefining Rape

Wendy Larcombe, Bianca Fileborn, Anastasia Powell, Nicola Henry and Natalia Hanley (Melbourne Law School, La Trobe University - Australian Research Centre in Sex, Health & Society, RMIT University, La Trobe University and University of Melbourne) have posted Reforming the Legal Definition of Rape in Victoria - What Do Stakeholders Think? (QUT Law Review, Vol. 15, No. 2, 2015) on SSRN. Here is the abstract:

In common law jurisdictions internationally and in Australia, the mens rea for rape has been reformed in recent decades to modify the Morgan principle that an accused who genuinely believes in consent cannot be convicted of rape, no matter how unreasonable and mistaken that belief. In Victoria, Australia, legislative attempts to modify but not abrogate the Morgan principle have created considerable confusion and undue complexity. When the Victorian government began consulting on major reforms to the sexual offences provisions, the authors designed a qualitative research project to investigate perceptions of a proposal to introduce, as the fault element for rape, absence of reasonable belief in consent. This article reports the key themes from a series of semi-structured interviews with stakeholders who have extensive practice or research-based expertise in criminal justice processing of rape cases. We investigated perceptions of the proposed definition of rape, anticipated interpretive issues, and expected benefits and limits of the ‘reasonable belief’ standard. Given that the investigated reform proposal has now been adopted, and came into effect in July 2015, our findings provide unique insight into stakeholders’ expectations of this latest reform of rape law in Victoria. Our findings suggest that it will be greeted cautiously and that it is expected, like a number of its predecessors, to introduce new ambiguities and complexities to the law of rape, while bringing only modest policy and practice benefits at best.

September 20, 2016 | Permalink | Comments (0)

Simon on The Organization of Prosecutorial Discretion

Simon williamWilliam H. Simon (Columbia University - Law School) has posted The Organization of Prosecutorial Discretion (From Prosecutors and Democracy: A Cross-National Study, (Maximo Langer and David Sklansky eds.), Forthcoming) on SSRN. Here is the abstract:

Discussion of prosecution reform is haunted by anachronistic conceptions of judgment and organization. These conceptions see professional judgment as inherently individual and ineffable and professional organization as inherently informal and opaque. The appeal of these conceptions is due in part to the assumption that the only alternative to the judgment and organization they prescribe is bureaucracy. In fact, post-bureaucratic forms of organization have become dominant in recent decades in several professions. They key elements of postbureaucratic organization are presumptive rules, root cause analysis, peer review, and performance measurement. Each of these elements can be found in recent reforms in prosecution, but the field, like the legal profession generally, lags other occupations. Although post-bureaucratic reforms are sometimes resisted as inconsistent with democracy, they are better understood as democracy-reinforcing.

September 20, 2016 | Permalink | Comments (0)

Monday, September 19, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

 

Rank Downloads Paper Title
1 274 Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016 
2 181 What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016 [new to top ten]
3 145 When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 7 Sep 2016 [new to top ten]
4 118 A Theory of Bribery
Deborah Hellman
University of Virginia - School of Law
Date posted to database: 25 Aug 2016 [3rd last week]
5 107 Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses
Anthony M. Dillof
Wayne State University Law School
Date posted to database: 19 Jul 2016 [4th last week]
6 96 Privileging Professional Insider Trading
Sarah Baumgartel
affiliation not provided to SSRN
Date posted to database: 18 Jul 2016 [5th last week]
7 96 How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan andPeter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016 [6th last week]
8 94 The Place for Neuroscience in Criminal Law
Deborah W. Denno
Fordham Law School
Date posted to database: 18 Jul 2016 [7th last week]
9 80 Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters
Craig Forcese and Leah Sherriff
University of Ottawa - Common Law Section and Independent
Date posted to database: 29 Aug 2016 [10th last week]
10 79 Why Lenity Has No Place in the Income Tax Laws
Andy Grewal
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [8th last week]

 

September 19, 2016 | Permalink | Comments (0)