Sunday, April 30, 2006
This week's top 5 papers on SSRN, with number of recent downloads, are:
|(1)||184||Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data |
Mark Denbeaux, Joshua W. Denbeaux,
Seton Hall University - School of Law, Denbeaux & Denbeaux,
Date posted to database: February 21, 2006
Last Revised: March 6, 2006
|(2)||134||Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: March 2, 2006
Last Revised: March 16, 2006
|(3)||112||The Poverty of the Moral Stimulus |
Georgetown University - Law Center,
Date posted to database: April 19, 2006
Last Revised: April 27, 2006
|(4)||86||Regulation by Generalization |
Frederick Schauer, Richard J. Zeckhauser,
Harvard University - John F. Kennedy School of Government, Harvard University - John F. Kennedy School of Government,
Date posted to database: November 15, 2005
Last Revised: April 17, 2006
|(5)||65||Loyalty to One's Convictions: The Prosecutor and Tunnel Vision |
DePaul University - College of Law,
Date posted to database: March 16, 2006
Last Revised: March 17, 2006
Friday, April 28, 2006
The University of Colorado police closed down the field where the annual smoke-in was to be held, posting signs, barricades and ushers to keep the kids out. The signs even warned that video surveillance was in use. Well, it was. Now, the University is offering rewards for the identities of those who crossed the line and lit up. Now, I think it would be hard to charge them with possession; the evidence is up in smoke, and it is hard to identify marijuana from a photograph--it could be tobacco. But, they surely could charge them with trespass based on a photo, and it looks like they will. (Thanks to BoingBoing).
Hindsight is 20-20, I guess, but this class project seems ill-concieved. A prof at Northern Kentucky University urged her students to destroy a series of crosses placed on campus by a right to life group. The students and faculty member did it, were arrested, and now face criminal charges.
Texas CrimProf Samuel Buell has posted the above titled-paper on SSRN. Here's the abstract:
Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. Reputational effects can flow through to individuals in ways that reduce probability of future wrongdoing by altering individual preferences and forcing reevaluation and reform of institutional arrangements. Blame and utility are closely connected here: the impulse to blame organizations and the beneficial effects of doing so both appear to depend on the degree of institutional influence on the agent.
These insights imply that the doctrine should be tailored, unlike present law, to more fully exploit criminal law's expressive capital by selecting cases according to entity blameworthiness. Barriers to describing the phenomenon of organizational influence and culture prevent discovery of a first-best rule of institutional responsibility. A second-best step would be to enhance the existing doctrine's examination of agent mens rea, to impose fault only if the agent acted primarily with the intent to benefit the firm.
Obtain paper here. [Mark Godsey]
Thursday, April 27, 2006
A priest, "Michael F.", convicted of abusing a youthful male parisoner, had his conviction reversed because his statement that he was struggling with homosexuality, made to the police att he time of his arrest, was admitted in his criminal trial. A three-judge panel of the Appellate Division concluded: "The admission of this statement injected into this case the specter of a jury deciding defendant's guilt on the unfounded association between homosexuality and pedophilia. Moreover, defendant's fear that the statement would be used to draw unwarranted conclusions was realized when the judge reminded the jury that defendant stated that he was homosexual."
Another interesting passage in a NJAD decision caught my eye: said the court: "In a brief, which was
unnecessarily lengthy, defendant advances ten errors allegedly committed by the trial court during defendant's Cape May County jury trial. The excessively wordy and repetitive 104 page "brief" made it more difficult for us to discern whether defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made that require reversal of defendant's conviction and a new trial." Well, as a former law clerk I am sympathetic to the court's irritation with a prolix brief. On the other hand, as a former appellate defender, I can't help but notice that the wordy and repetitive brief won; somehow the advocate caught the court's attention. Counsel must have been doing something right. [Jack Chin]
From NPR: All Things Considered, April 26, 2006 · The Supreme Court hears arguments on what condemned inmates can do to challenge their method of execution. The Florida case centers on whether an inmate should get a federal court hearing on his claim that the lethal-injection method causes unnecessary pain. Listen to story here. [Mark Godsey]
Wednesday, April 26, 2006
A Florida man convicted of felony murder based on injecting store-bought silicone into people who wanted cut rate, amateur plastic surgery was convicted of murder when one "patient" died. The Florida District Court of Appeals reversed the conviction, holding that a doctor's testimony that the silicone inections led to death was insufficient. Story here, opinion here.
LSU CrimProf Stuart Green has a new book, entitled Lying, Cheating, and Stealing : A Moral Theory of White Collar Crime. Here's the amazon.com description:
The picture of crime that dominates the popular imagination is one of unambiguous wrondoing--manifestly harmful acts that are clearly worthy of condemnation. The accompanying picture of the criminal--the thief, the murderer--is a picture of society's failures--to be cast out and re-integrated through a process of punishment and penance. Our understanding of white-collar crime, by contrast, is pervaded by moral and imaginative ambiguity. Such crimes are often commited by society's success stories, by the rich and the powerful, and frequently have no visible victim at their root. The problem of marrying these disparate pictures has led to a confusion of the boundaries of white-collar cime. How is it possible to distinguish criminal fraud from mere lawful "puffing," tax evasion from "tax avoidance," obstruction of justice from "zealous advocacy," insider trading from "savvy investing," bribery from "log rolling," and extortion from "hard bargaining"? How should we, as scholars and students, lawyers and judges, law enforcement officials and the general public, distinguish the lawful from the unlawful, the civil from the criminal?
In the first in-depth study of its kind, Stuart Green exposes the ambiguities and uncertainties that pervade the white-collar crimes, and offers an approach to their solution. Drawing on recent cases involving such figures as Martha Stewart, Bill Clinton, Tom DeLay, Scooter Libby, Jeffrey Archer, Enron's Andrew Fastow and Kenneth Lay, HealthSouth's Richard Scrushy, Yukos Oil's Mikhail Khodorkovsky, and the Arthur Andersen accounting firm, Green weaves together what at first appear to be disparate threads in the criminal code, revealing a complex and fascinating web of moral insights about the nature of guilt and innocence, and what, fundamentally, constitutes conduct worthy of punishment by criminal sanction. Green argues that white-collar crime is best understood through a framework of everyday moral concepts that include not only lying, cheating, and stealing, but also coerction, exploitation, disloyalty, promise-breaking, disobedience, and other forms of deception. In the process, he reveals the essentially moral fabric underlying the legal category of white-collar crime. [Mark Godsey]
Tuesday, April 25, 2006
From BNA.com: The U.S. Supreme Court April 25 decided one case related to the criminal justice system. In Day v. McDonough, No. 04-1324, the court held that a federal district court has discretion to dismiss a habeas corpus petition sua sponte for failing to comply with the one-year statute of limitations set by the Antiterrorism and Effective Death Penalty Act even if the state has answered the petition without contesting the issue of timeliness.
Colin Finnerty got diversion in a D.C. assault case, but he failed to not get rearrested. So, he's going to trial. I think this kind of condition is very unfair--a person can get arrested for any reason. Even if there's PC, it does not mean Finnerty did anything wrong. A condition that the person not commit any crimes, that would be fine, but it is not fair to create a condition which is beyond the control of the defendant. [Jack Chin]
Story here. The tainted evidence: Bullet lead analysis and voice analysis; according to the story, "the FBI ordered agents not to hand over lab reports showing it was not possible to make a definitive match using the technology available." The defendant had filed numerous unsuccessful appeals over the years.
This Dallas Morning News article in which Minnesota CrimProf Kevin Reitz is quoted describes two probationers supervized by the same judge. One was convicted of robbery, got probation, failed a drug test and was resentenced to life. The other was convicted of murder, failed five drug tests while on probation and was given reduced conditions of probation.