CrimProf Blog

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

Thursday, April 27, 2017

Stoughton on Public and Private Policing

Stoughton sethSeth W. Stoughton (University of South Carolina School of Law) has posted The Blurred Blue Line: Reform in an Era of Public & Private Policing (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

In April 2017, the Alabama Senate voted to authorize the formation of a new police department. Like other officers in the state, officers at the new agency would have to be certified by the Alabama Peace Officers Standards and Training Commission. These new officers would be “charged with all of the duties and invested with all of the powers of law enforcement officers.” Unlike most officers in Alabama, though, the officers at the new agency would not be city, county, or state employees. Instead, they would be working for the Briarwood Presbyterian Church, which Senate Bill 193 authorized to “appoint and employ one or more persons to act as police officers to protect the safety and integrity of the church and its ministries.”

The prospect of a private church with its own police department seems like a radical departure from modern practices. The contemporary conception of policing, after all, is that it is a primarily and foundationally governmental activity. That conception is easy to take for granted. After all, “maintaining order and controlling crime are paradigmatic governmental functions.” That is certainly the role that most police agencies see themselves as fulfilling, and, by and large, that is also how the public sees policing.

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April 27, 2017 | Permalink | Comments (0)

Podgor on White Collar Shortcuts

Podgor ellenEllen S. Podgor (Stetson University College of Law) has posted White Collar Shortcuts (University of Illinois Law Review, Vol. 2018, No. 3, 2018, Forthcoming) on SSRN. Here is the abstract:

In the aftermath of financial and corporate frauds, aggressive government policy is apparent. But while touting a crackdown to correct past prosecution failures, one sees the government using shortcuts in both agency policy and prosecutorial practices. These shortcuts can be seen in the investigative, charging, and plea areas. There is an increased use of search warrants, wiretaps and failures to adhere to criminal discovery obligations. So too, one sees the government charging shortcut offenses such as perjury, obstruction of justice and false statements as opposed to the underlying conduct that was initially being investigated. Taking advantage of over-federalization and over-criminalization is seen in the stacking of multiple charges, tacking on conspiracy and money-laundering offenses, and in adding new plea waivers to secure finality of all issues and avoid future litigation. While these aggressive policy moves may seem efficient, the use of shortcuts has serious consequences that undermine deterrence and legitimacy in the criminal justice process.

April 27, 2017 | Permalink | Comments (0)

Wednesday, April 26, 2017

Brown on Discovery Reform

Brown darryl kDarryl K. Brown (University of Virginia School of Law) has posted Discovery Reform in State Criminal Justice (Forthcoming in Academy for Justice: A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017)) on SSRN. Here is the abstract:

Rules of pretrial evidence disclosure vary widely in state criminal justice systems. In all states discovery is more restricted than it is in civil litigation. In a substantial minority of states, it remains dramatically restricted. That is in part a relic of the common law tradition when it was assumed most cases would be resolved by trial. But trials are now rare; nearly all convictions are the result of a plea bargain. The pretrial stage is the only place in which adversarial process operates and in which parties can evaluate evidence. Most states have adopted broader discovery rules in light of this reality, because disclosure failures have led to wrongful convictions, and because experience show that risks related to certain disclosures are easily managed. The primary agenda for discovery reform in state criminal justice is to convince those states that still adhere to outdated disclosure policies to join the majority of their peers and require more evidence to be exchanged between prosecutors and defense attorneys prior to plea bargaining.

April 26, 2017 | Permalink | Comments (0)

Tuesday, April 25, 2017

Park on Border Searches of Digital Devices

Eunice Park (Western State University - College of Law) has posted The Elephant in the Room: What is a 'Nonroutine' Border Search, Anyway? Digital Device Searches Post-Riley (Hastings Constitutional Law Quarterly, Vol. 44, No. 3, Spring 2017, at 277) on SSRN. Here is the abstract:

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, the officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: the international border. While the wide latitude circuit courts have given government agents to conduct border searches has had a wrinkle since the 2013 decision United States v. Cotterman, which deemed a forensic probe into the defendant's laptop "essentially a computer strip search," courts and scholars have been struggling with the issue of how Riley might impact border laptop searches or, more importantly, border searches of digital devices generally. This Article proposes an approach that takes the "elephant" of defining routine and nonroutine searches out of the room, and rethinks the applicability in the digital era of notions of entering, versus exiting, the United States, as well as imminent, versus ongoing, crime, in the quest to maintain balance between law enforcement interests and individual privacy rights.

April 25, 2017 | Permalink | Comments (0)

Craig on Judging Sexual Assault Trials

Elaine Craig (Dalhousie University - Schulich School of Law) has posted Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v Bassam Al-Rawi (Canadian Bar Review Forthcoming) on SSRN. Here is the abstract:

The recent decision to acquit a Halifax taxi driver of sexual assault in a case involving a very intoxicated woman, who was found by police in the accused’s vehicle unconscious and naked from the breasts down, rightly sparked public criticism and consternation. A review of the trial record in Al-Rawi, including the examination and cross-examination of witnesses, the closing submissions of the Crown and defence counsel, and the trial judge’s oral decision suggests a failure of our legal system to respond appropriately to allegations of sexual assault - a failure for which, the author argues, both the trial judge and legal counsel may bear some responsibility. Arguably, in addition to the many legal errors of the trial judge, both the Crown and defence counsel in this case also contributed to the problematic outcome in Al-Rawi. For example, defence counsel introduced evidence that the complainant had flirted and danced inappropriately earlier in the evening on the night of the incident. The theory of the defence appears to have been that the complainant, when she consumes alcohol, becomes the “type of person” who flirts and dances inappropriately with men in bars, and can reasonably be inferred to have entered a taxi, stripped her urine soiled clothes off, thrown them at the unknown driver, perhaps kissed or licked his face, and then propped up her legs in the straddle position minutes or seconds before passing out. The Crown did not object when defence counsel introduced this evidence, which arguably should have been excluded under Canada’s rape shield regime; nor did he, in his closing, urge the trial judge to ensure that it not be relied upon to draw stereotypical inferences about women, alcohol, and sex.

April 25, 2017 | Permalink | Comments (0)

Malgieri & De Hert on Surveillance Oversight

Gianclaudio Malgieri and Paul De Hert (Vrije Universiteit Brussel (VUB), Faculty of Law and Free University of Brussels (VUB)- LSTS) have posted European Human Rights, Criminal Surveillance, and Intelligence Surveillance: Towards 'Good Enough' Oversight, Preferably But Not Necessarily by Judges (D. Gray and S. Henderson (eds.), Cambridge Handbook of Surveillance Law, 2017, Forthcoming) on SSRN. Here is the abstract:

The two European Courts (the European Court of Human Rights, ECtHR and, to a lesser degree, the European Union Court of Justice, EUCJ) have contributed greatly to the development of a legal framework for surveillance by either law enforcement agencies in the criminal law area or by secret services. Both courts put great emphasis on a system of control ex ante and post hoc by independent supervisory authorities. A complex and controversial issue remains whether the human rights to privacy, respect of communications, and to an effective remedy (enshrined in Article 8 and 13 of European Convention on Human Rights (ECHR)), requires judicial review as a necessary safeguard for secret surveillance or alternatively, at which conditions, parallel systems of non-judicial review can be accepted as adequate safeguards against illegitimate interference in citizens’ private life.

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April 25, 2017 | Permalink | Comments (0)

Haugh on "Cadillac Compliance" Breakdown

Todd Haugh (Indiana University - Kelley School of Business) has posted 'Cadillac Compliance' Breakdown (69 Stan. L. Rev. Online 198 (2017)) on SSRN. Here is the abstract:

This Essay argues that the best corporate compliance programs, what are known as “Cadillac compliance” programs, are becoming increasingly criminalized. In at attempt to avoid application of the criminal law, companies have adopted compliance protocols that are motivated by and mimic that law, using the precepts of criminal legislation, enforcement, and adjudication to advance their compliance goals. This approach to compliance is inherently flawed, however—it can never be fully effective in abating corporate wrongdoing. Criminalized compliance regimes are inherently ineffective because they impose unintended behavioral consequences on corporate employees by fostering rationalizations that allow offenders to square their self-perception as “good people” with the unethical or illegal behavior they are contemplating, thereby allowing wrongdoing to go forward. By importing into the corporation many of the criminal law’s delegitimizing features, criminalized compliance regimes create space for rationalizations, facilitating the necessary precursors to the commission of white collar and corporate crime. This insight, which offers a new way of conceptualizing corporate compliance, explains the ineffectiveness of many compliance programs and also suggests how companies might go about fixing them. The Essay addresses, through real-world examples, how companies might use behavioral compliance strategies to combat rationalizations and help repair their “Cadillac compliance” programs.

April 25, 2017 | Permalink | Comments (0)

Park et al. on Ride-Sharing and Sexual Assault

Jiyong Park, Junetae Kim, Min-Seok Pang and Byungtae Lee (Korea Advanced Institute of Science and Technology (KAIST) - College of Business, Korea Advanced Institute of Science and Technology (KAIST), Temple University - Department of Management Information Systems and Korea Advanced Institute of Science and Technology (KAIST)) has posted Offender or Guardian? An Empirical Analysis of Ride-Sharing and Sexual Assault on SSRN. Here is the abstract:

Sexual assault is the most repellant and costliest crime that inflicts irrecoverable harms to victims. This study examines the effect of IT-enabled ride-sharing platforms on sexual assaults. Drawing upon routine activity theory from the criminology literature, we posit that a ride-sharing platform can serve as a capable guardian that deters sexual assaults by reducing a passenger’s risk of being a suitable target. Using comprehensive data from New York City, we investigate the relationship between Uber transactions and rape incidents in 2015. For our identification strategy, we adopt subway service suspension and local air pollution as instruments. Our findings show that the number of Uber pickups is negatively associated with the likelihood of rape occurrences. While this deterrent impact is found to be insignificant in taxi-dense areas (Manhattan), ride-sharing contributes to a more significant reduction in rape in taxi-sparse areas (the outer boroughs). In addition, the deterrent effect of ride-sharing is stronger in neighborhoods with lower incomes and a higher percentage of non-White population. This study sheds new light on the potential of IT-enabled platforms to improve social well-being beyond its economic contributions.

April 25, 2017 | Permalink | Comments (0)

Bowers on Upside-Down Juries

Bowers joshJosh Bowers (University of Virginia School of Law) has posted Upside-Down Juries (Northwestern University Law Review, Forthcoming) on SSRN. Here is the abstract:

The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice. But, by focusing on trial scarcity, scholars have managed to tell only part of the story. The unexplored first-order question is whether juries even do their work well. And the answer to that question turns on the kinds of work jury members are typically required to do. Once upon a time, trials turned upon practical reasoning and general moral blameworthiness. Modern trials have come to focus upon legal reasoning and technical guilt accuracy. In turn, the jury has evolved from a flexible body to a rule-bound institution. But, of course, even as trials have changed, laypeople’s capacities have stayed largely the same. Laypeople remain more skilled at the art of equitable evaluation than the science of legal analysis.

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April 25, 2017 | Permalink | Comments (0)

Chin on Collateral Consequences of Criminal Conviction

Chin_jackGabriel "Jack" Chin (University of California, Davis - School of Law) has posted Collateral Consequences of Criminal Conviction (Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN. Here is the abstract:

For many people convicted of crime, the greatest effect will not be imprisonment, but being marked as a criminal and subjected to collateral consequences. Consequences can include loss of civil rights, public benefits, and ineligibility for employment, licenses, and permits. Often applicable for life, the United States, the 50 states, and their agencies and subdivisions impose collateral consequences based on convictions from any jurisdiction. Collateral consequences are so numerous and scattered as to be virtually uncountable. In recent years, the American Law Institute, ABA, and Uniform Law Commission all have proposed reforms.

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April 25, 2017 | Permalink | Comments (0)

Monday, April 24, 2017

Tanovich on Inductive Reasoning in Sexual Assault Cases

David M. Tanovich (University of Windsor - Faculty of Law) has posted Regulating Inductive Reasoning In Sexual Assault Cases (Berger, Ben; Cunliffe, Emma; and Stribopoulos, James, [TBD (On Justice Marc Rosenberg)] (Toronto: 2017, Carswell)) on SSRN. Here is the abstract:

Justice Marc Rosenberg will be remembered as one of Canada’s greatest criminal law jurists by those fortunate enough to have worked with him, to have appeared before him, and now, by those who study and rely on his jurisprudence. He was a jurist who cared deeply about the fairness of the criminal justice system and he strived in every decision to arrive at a just result on the law and the facts. Many of Justice Rosenberg’s judgments reflect a concern for the constant struggle of triers of fact to accurately and fairly assess the credibility and reliability of evidence in determining historical events whether it be the testimony of the accused or central Crown witness. This piece explores three decisions from Justice Rosenberg which highlight the different ways in which stereotyping can distort the assessment of credibility and reliability in sexual assault cases: R v. Levert, R v. Rand and, R v. Stark.

An important aspect of ensuring accuracy and fairness for Justice Rosenberg was the need to carefully regulate inductive reasoning: the engine that drives judicial reasoning and, ultimately, fact finding. The tools used for inductive reasoning include the decision maker’s or the law’s application of what it sees as common sense, logic and human experience. As an endeavour that explicitly relies on so-called common sense and generalizations about human experience, which shift with time, inductive reasoning can be highly subjective and can easily become a breeding ground for implicit bias, discriminatory stereotyping and unreliable decision-making.

April 24, 2017 | Permalink | Comments (0)

Robinson et al. on Criminal Law Recodification

Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak and Criminal Law Research Group  (University of Pennsylvania Law School, University of Pennsylvania Law School - Student/Alumni/Adjunct, University of Pennsylvania Law School - Student/Alumni/Adjunct and University of Pennsylvania Law School) have posted Report of the Delaware Criminal Law Recodification Project (Delaware General Assembly’s Criminal Justice Improvement Committee (2017)) on SSRN. Here is the abstract:

In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors to draft a Proposed Code and commentary to address these issues, and resulting in this Report. By utilizing modern code drafting techniques and other innovations, the Proposed Code comprehensively, yet concisely, states the rules governing criminal liability in Delaware in a way that is easy to read and understand, and responds to twenty-first-century challenges and norms. While focusing on Delaware, the Proposed Code also illustrates how modernized criminal codes could be drafted for other jurisdictions, and can serve as a stimulus and a model for a “second wave” of American criminal law recodifications.

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April 24, 2017 | Permalink | Comments (0)

Chin & Ormonde on Misdemeanor and the Grand Jury Clause

Gabriel "Jack" Chin and John Ormonde (University of California, Davis - School of Law and Independent) have posted Infamous Misdemeanors and the Grand Jury Clause (Minnesota Law Review, Vol. 102, Forthcoming) on SSRN. Here is the abstract:

Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended.

April 24, 2017 | Permalink | Comments (0)

Sacharoff & Lustbader on Police Body Camera Videos

Laurent Sacharoff and Sarah Lustbader (University of Arkansas School of Law and Vera Institute of Justice) have posted Who Should Own Police Body Camera Videos? (Washington University Law Review, Vol. 95, 2017) on SSRN. Here is the abstract:

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as helpful for gathering evidence against individuals in cases of resisting arrest, drug possession, vandalism, and so on.

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April 24, 2017 | Permalink | Comments (0)

Sunday, April 23, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 1,708 Why Prison?: An Economic Critique
Peter N. Salib
United States Court of Appeals for the Seventh Circuit
Date posted to database: 7 Mar 2017 
2 778 Law, Virtual Reality, and Augmented Reality
Mark A. Lemley and Eugene Volokh
Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 17 Mar 2017 
3 525 How Should Justice Policy Treat Young Offenders?
BJ Casey, Richard J. Bonnie, Andre Davis,David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Anthony D. Wagner
Yale University - Department of Psychology, University of Virginia - School of Law, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology
Date posted to database: 28 Feb 2017 
4 357 Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v Bassam Al-Rawi
Elaine Craig
Dalhousie University - Schulich School of Law
Date posted to database: 12 Apr 2017 [new to top ten]
5 165 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [4th last week]
6 138 Resurrecting Labor
Richard A. Bales
Ohio Northern University - Pettit College of Law
Date posted to database: 28 Mar 2017 [5th last week]
7 124 Neuroethics: Neurolaw
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [6th last week]
8 124 Criminal Employment Law
Benjamin Levin
Harvard Law School
Date posted to database: 3 Apr 2017 [7th last week]
9 100 Incredible Women: Sexual Violence and the Credibility Discount
Deborah Tuerkheimer
Northwestern University - Pritzker School of Law
Date posted to database: 21 Feb 2017 [8th last week]
10 95 'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence
Michael L. Perlin
New York Law School
Date posted to database: 7 Apr 2017 [new to top ten]

April 23, 2017 | Permalink | Comments (0)

Saturday, April 22, 2017

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers.

Monday

  • McWilliams v. Dunn: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.
  • Davila v. Davis: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Wednesday

  • Maslenjak v. U.S.: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

April 22, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 4,592 Encryption Workarounds
Orin S. Kerr and Bruce Schneier
The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society
Date posted to database: 22 Mar 2017 
2 320 Surveillance Intermediaries
Alan Z. Rozenshtein
Georgetown University Law Center
Date posted to database: 20 Mar 2017 
3 291 The Progressive Prosecutor's Handbook
David Alan Sklansky
Stanford University
Date posted to database: 15 Feb 2017 
4 255 The Undue Influence of Surveillance Technology Companies on Policing
Elizabeth E. Joh
University of California, Davis - School of Law
Date posted to database: 28 Feb 2017 
5 206 Reassessing Prosecutorial Power Through the Lens of Mass Incarceration
Jeffrey Bellin
William & Mary Law School
Date posted to database: 9 Mar 2017 [6th last week]
6 201 The Silence Penalty
Jeffrey Bellin
William & Mary Law School
Date posted to database: 22 Mar 2017 [7th last week]
7 165 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [8th last week]
8 164 Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System
Rebecca Wexler
Data & Society Research Institute
Date posted to database: 21 Feb 2017 [10th last week]
9 147 Due Process Abroad
Nathan S. Chapman
University of Georgia School of Law
Date posted to database: 21 Feb 2017 
10 139 Performative Privacy
Scott Skinner-Thompson
New York University School of Law
Date posted to database: 9 Mar 2017 [new to top ten]

April 22, 2017 | Permalink | Comments (0)

Friday, April 21, 2017

Slobogin on Policing and the Cloud

Slobogin_bigChristopher Slobogin (Vanderbilt University - Law School) has posted Policing and the Cloud (Academy for Justice: A Report on Scholarship and Criminal Justice (Erik Luna ed., 2017, Forthcoming)) on SSRN. Here is the abstract:

Databases are full of personal information that law enforcement might find useful. Government access to these databases can be divided into five categories: suspect-driven; profile-driven; event-driven; program-driven and volunteer-driven. This paper recommends that, in addition to any restrictions imposed by the Fourth Amendment (which currently are minimal), each type of access should be subject to its own regulatory regime. Suspect-driven access should depend on justification proportionate to the intrusion. Profile-driven access should likewise abide by a proportionality principle but should also be subject to transparency, vetting, and universality restrictions. Event-driven access should be cabined by the time and place of the event. Program-driven access should be authorized by legislation and by regulations publicly arrived-at and evenly applied. Information maintained by institutional fiduciaries should not be volunteered unless necessary to forestall an ongoing or imminent serious wrong.

April 21, 2017 | Permalink | Comments (0)

Bowman on The Federal Economic Crime Guideline

Bowman frankFrank O. Bowman III (University of Missouri School of Law) has posted Recalibrating the Federal Economic Crime Guideline: An Admiring Rejoinder to Judge Bennett and Friends (102 Iowa Law Review Online 205 (2017)) on SSRN. Here is the abstract:

This is a response to an article by U.S. District Judge Mark Bennett and Professors Justin Levinson and Koichi Hioki in which they critique some deficiencies in the current Federal Sentencing Guideline governing economic crime (U.S.S.G. Section 2B1.1), present the results of their own survey of judicial attitudes toward sentencing a representative fraud case, and make some useful prescriptions for change.

While I agree with most of their diagnoses and virtually all of their prescriptions, there are points on which we are not entirely in accord. Moreover, the data from their survey may point in slightly different directions than they suggest.

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April 21, 2017 | Permalink | Comments (0)

Stephens on Criminalizing HIV

Stefanie Nicole Stephens (Southern University Law Review) has posted Ending HIV: Stigma, Fear-Based Policing, and Criminalization in Louisiana Through Training of Law Enforcement and Prosecutors on SSRN. Here is the abstract:

Human immunodeficiency virus, commonly known as HIV is a lentivirus that if left untreated, can lead to acquired immunodeficiency virus, commonly known as AIDS. Currently, HIV/AIDS affects more than 1.2 million people living in the U.S, and 1 out of 8 people are not even aware that they have contracted HIV. HIV emerged during the 1980’s, and was originally seen as a type of cancer because of the severity of the disease, and the almost immediate manner in which it claimed an infected person’s life. Since then, many strides have been made medically in improving the quality and length of life of those who have contracted HIV. Despite these medical advancements, those who have contracted HIV now have obstacles to face criminally.

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April 21, 2017 | Permalink | Comments (0)