Sunday, December 21, 2014
Judith L. Ritter (Widener University - School of Law) has posted After the Hurricane: The Legacy of the Rubin Carter Case (Hastings College of the Law, U of California, Hastings Race and Poverty Law Journal, v. 12, 2015) on SSRN. Here is the abstract:
Rubin “Hurricane” Carter died in the spring of 2014 at the age of seventy-six. He was a top middleweight boxing contender in the early 1960s, twice convicted of a triple homicide, but then freed by a federal court in 1985 after he served nineteen years in prison. This article recalls his life, the homicide trials and the constitutional issues that led to his release. The article makes the point that had Rubin Carter’s federal habeas corpus petition been adjudicated under current law, he would have remained behind bars. Congress enacted the Antiterrorism and Effective Death Penalty Act in 1996. The Act greatly restricts a state court inmate’s access to federal court review. Moreover, in recent years, the United States Supreme Court’s application of the Act has made federal habeas corpus relief practically unattainable. The power of The Great Writ is in jeopardy. This paper, suggests that a revitalization of meaningful habeas corpus relief would be an especially appropriate legacy for Rubin Carter.
Friday, December 19, 2014
Martina Kitzmueller (University of New Mexico - School of Law) has posted Are You Recording This?: Enforcement of Police Videotaping (Connecticut Law Review, Vol. 47, No. 1, 2014) on SSRN. Here is the abstract:
Increasing numbers of police departments equip officers with dashboard or body cameras. Advances in technology have made it easy for police to create and preserve videos of their citizen encounters. Videos can be important pieces of evidence; they may also serve to document police misconduct or protect officers from false allegations. Yet too often, videos are lost, destroyed, or never made, often depriving criminal defendants of the only objective evidence in a case. When this happens, there is not always a consequence to the prosecution. This Essay explores this problem of enforcement by examining how different states are compelling law enforcement to make and preserve videos through a combination of legislation and judicial intervention.
Tara Urs has posted Can the Child Welfare System Protect Children Without Believing What They Say? (New York University Review of Law & Social Change, Vol. 38, No. 2, p. 305, 2014) on SSRN. Here is the abstract:
In Kennedy v. Louisiana, the Supreme Court noted that the problem of “unreliable, induced, and even imagined child testimony” creates a “special risk of wrongful execution in some child rape cases.” Indeed, empirical research has repeatedly demonstrated problems with accuracy in children’s accounts of their own experiences. Although the research and commentary in this area has focused on how allegations of child sexual abuse are addressed in the criminal justice system, these studies have much broader implications: every year, state officials conduct millions of interviews with children in the context of child welfare investigations. These investigations have serious consequences for families — for instance, they can lead to the placement of a child in foster care or the termination of parental rights.
Howard M. Wasserman (Florida International University (FIU) - College of Law) has posted Moral Panics and Body Cameras (Wash. U. L. Rev. Commentaries (Nov. 18, 2014), Wash. U. L. Rev. (2015 Forthcoming)) on SSRN. Here is the abstract:
This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing the body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.
Thursday, December 18, 2014
Amanda M. Rose (Vanderbilt University - Law School) has posted Public Enforcement: Criminal versus Civil (Draft chapter, Oxford Handbook of Corporate Law and Governance (J. Gordon and G. Ringe eds.), Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This chapter explores the distinction between civil and criminal public enforcement of corporate laws and standards. It explains the main normative arguments relevant to the choice between civil and criminal enforcement, first generally and then as applied to the corporate law context specifically. It also examines actual corporate law enforcement patterns in the United States and abroad. While enforcement patterns vis-à-vis individual defendants hew closely to the theoretical ideal, there is substantial variation in countries’ use of corporate criminal liability, with some countries (most notably the United States) pursuing policies that are difficult to defend theoretically.
Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.” I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction. More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.
Ryan McCarl has posted Incoherent and Indefensible: An Interdisciplinary Critique of the Supreme Court's Void-for-Vagueness Doctrine (Hastings Constitutional Law Quarterly, Vol. 42, No. 1, Fall 2014) on SSRN. Here is the abstract:
The Supreme Court’s “void-for-vagueness” (or simply “vagueness”) doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that “fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” and “encourage arbitrary and erratic arrests and convictions.”
This Article first argues that the doctrine contains no unique element that separates it from other substantive due process principles. Then, the Article briefly discusses the concept of vagueness as understood by linguists and philosophers working outside the legal community. Finally, the Article concludes that a major contributing factor to the conceptual incoherence of the void-for-vagueness doctrine is that the doctrine has — despite its name — nothing whatsoever to do with vagueness.
Wednesday, December 17, 2014
Elizabeth E. Joh (U.C. Davis School of Law) has posted Should Arrestee DNA Databases Extend to Misdemeanors? (Recent Advances in DNA & Gene Sequences, 2015, Forthcoming) on SSRN. Here is the abstract:
The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.
Edward J. Imwinkelried (University of California, Davis - School of Law) has posted Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0 on SSRN. Here is the abstract:
Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.
However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party’s misconduct is admissible only if it has a “legitimate tendency” to establish the accused’s innocence. Today most jurisdictions follow a version of the “direct link” test. Under this test, standing alone evidence of a third party’s motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime.
Tuesday, December 16, 2014
Doug Berman at Sentencing Law & Policy excerpts an article from USA Today. In part:
Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.
Marianna Brown Bettman (Cincinnati) has this post at Legally Speaking Ohio discusing a recent Ohio Supreme Court opinion in a death penalty case. In part:
The holding in this case is very simple. It is the responsibility of trial counsel to conduct a full mitigation investigation and to present an adequate mitigation theory. Herring’s trial lawyers failed to do that in this case. Trial counsel can’t foist the blame for an inadequate investigation onto their retained mitigation specialist. Think of that responsibility as a non-delegable duty, to borrow a term from tort law. And Herring was prejudiced by the ineffectiveness of his counsel in this case because there is a reasonable probability that the penalty-phase outcome would have been different had the lawyers done their jobs properly.
Monu Singh Bedi (DePaul University College of Law) has posted Social Networks, Government Surveillance, and the Fourth Amendment Mosaic Theory (Boston University Law Review, Vol. 94, No. 1809, 2014) on SSRN. Here is the abstract:
The mosaic theory — first articulated by the Supreme Court in United States v. Jones two years ago — has turned out to be an empty promise of Fourth Amendment protection. However, this may have less to do with the theory itself and more to do with the context in which it has been applied. Introduced as a mechanism to combat long-term GPS police surveillance, scholars have widely criticized the theory as untenable and too costly. Its application jeopardizes long-standing police investigative tactics, including the use of undercover informants and even short-term human surveillance.
This Article provides the first application of the mosaic theory to social networking communications over the Internet.
From the L.A. Times:
Jeremiah Malfroid was wanted for allegedly downloading and distributing child pornography. The 33-year-old surrendered Monday to local authorities in Oroville, Calif.
On Dec. 9, a post appeared on Facebook with information detailing his alleged crime and his fugitive status, according to U.S. Immigration and Customs Enforcement.
. . .
Investigators believe “the additional pressure from social media contributed heavily” to his surrender, ICE said in a statement.
Audrey Redford and Benjamin W. Powell (Texas Tech University - Free Market Institute and Texas Tech University - Free Market Institute) have posted Dynamics of Intervention in the War on Drugs: The Build-Up to the Harrison Act of 1914 on SSRN. Here is the abstract:
The economics literature cites the Harrison Narcotics Tax Act of 1914 as the start of the War on Drugs. With few exceptions, the literature fails to explain the dynamic nature of interventionism. This paper a dynamic model of interventionism to show that legislation passed in the late 19th century produced unintended consequences that ultimately led to the passage of the Harrison Act.
Monday, December 15, 2014
Eric Alan Johnson (University of Illinois College of Law) has posted Dynamic Incorporation of the General Part: Criminal Law's Missing (Hyper)Link (UC Davis Law Review, Vol. 48, 2015, Forthcoming) on SSRN. Here is the abstract:
In theory, the law that defines criminal offenses is exclusively statutory. In practice, though, criminal statutes often leave important offense-requirements undefined or even unexpressed. In particular, criminal statutes often fail to address questions that belong to the criminal law’s so-called General Part — questions like what counts as a “cause,” for example, or what culpable mental states are required of accomplices. When courts face fundamental questions like these, as the Supreme Court did twice last year, they often turn for guidance to the judge-made law of the General Part, which is vast and rich. But this resort to judge-made criminal law raises a difficult, if usually unacknowledged, methodological question: How, if it all, does the judge-made law of the General Part bear on the interpretation of statutes that define individual criminal offenses?
Under scrutiny by a court-ordered external monitor and threatened with federal receivership, Oakland's 14-year journey from notorious law enforcement agency to reform-minded department illustrates the difficulty of changing the way police operate at time of national soul-searching over heavy handed police tactics.
Using a new computer system to monitor police, Oakland may be an indicator of what lies ahead for Ferguson, Missouri, and other U.S. cities whose officers face mounting public mistrust and the perception that they operate with impunity in the shooting of black suspects.
Kevin R. Johnson (University of California, Davis - School of Law) has posted Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:
In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an “aggravated felony” under the U.S. immigration laws.
Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe’s arrest is a textbook example of racial profiling.
Some studies have gone so far as to show that not only does transit not increase crime, but it may actually reduce crime in an area. Recent work has found that to be the case along the Lynx light rail system in Charlotte, and theSkyTrain rail system in Vancouver. Perhaps there are more eyes on the street. Perhaps would-be criminals used the better job access provided by new transit to gain legitimate employment. Perhaps investments around a station led to general improvement in quality of life.
. . .
That's not to say the question of whether transit encourages crime is completely settled. Social science rarely works so cleanly. Some studies have been inconclusive; some have even given (admittedly cautious) support to the transit-crime link. These caveats aside, a skeptic might still wonder how appropriate it is to apply findings from one metro area to another. But it so happens that the transit-crime question has been studied directly in Atlanta at least twice—and in both cases, the results offer very little reason to fear a connection.
Sunday, December 14, 2014
|1||314||Information Networks: Evidence from Illegal Insider Trading Tips
Kenneth R. Ahern
University of Southern California - Marshall School of Business
Date posted to database: 18 Oct 2014 [2nd last week]
|2||204||A Conceptual Framework for the Regulation of Cryptocurrencies
Omri Y. Marian
University of Florida - Fredric G. Levin College of Law
Date posted to database: 15 Oct 2014 [3rd last week]
|3||168||Laws of Cognition and the Cognition of Law
Dan M. Kahan
Yale University - Law School
Date posted to database: 30 Oct 2014 [4th last week]
|4||160||Why Crime Rates Are Falling Throughout the Western World
University of Minnesota - Twin Cities - School of Law
Date posted to database: 9 Nov 2014 [5th last week]
|5||147||The Compliance Function: An Overview
Geoffrey P. Miller
New York University School of Law
Date posted to database: 20 Nov 2014 [new to top ten]
|6||144||Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane
Brandon Buskey and Daniel Korobkin
ACLU and ACLU of Michigan
Date posted to database: 14 Oct 2014 [7th last week]
|7||136||Paperwork and Punishment: It's Time to Fix FBAR
McGill University - Faculty of Law
Date posted to database: 17 Oct 2014 [8th last week]
|8||129||The Death Penalty: Should the Judge or the Jury Decide Who Dies?
Valerie P. Hans, John H. Blume, Theodore Eisenberg,Amelia Courtney Hritz, Sheri Lynn Johnson, Caisa E. Royerand Martin T. Wells
Cornell University - School of Law, Cornell Law School, Cornell University - Law School, Cornell University, Cornell Law School, Cornell University and Cornell University - School of Law
Date posted to database: 24 Oct 2014 [9th last week]
|9||122||Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism
University of Pennsylvania - The Wharton School
Date posted to database: 13 Nov 2014 [new to top ten]
Ariel Porat and Omri Yadlin
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law
Date posted to database: 9 Oct 2014