CrimProf Blog

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

Wednesday, August 19, 2009

Feller on Jurisdictional Entrapment in Child Exploitation Prosecutions

Leonid Feller (University of Michigan Law School) has posted The Jurisdictional Entrapment Defense: An Analytic Framework for Claims of Manufactured Jurisdiction in Child Exploitation Prosecutions (Kentucky Law Journal, Vol. 98, December 2009) on SSRN. Here is the abstract:

An analytic framework for claims of manufactured jurisdiction in child exploitation prosecutions.

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August 19, 2009 | Permalink | TrackBack (0)

More on Innocence and Executions

The New York Times editorializes here in favor of a constitutional right against execution of those who can provide clear and convincing evidence of their innocence.


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August 19, 2009 | Permalink | TrackBack (0)

Last Term's Opinions

StockburgerPeter In a vital service to those of us who cannot remember what we had for lunch yesterday, and a useful service to many others, CrimProf's graduate fellow, Peter Stockburger (University of San Diego Class of 2009), pulls together the reporter's syllabi from last term's U.S. Supreme Court criminal law and procedure opinions. His future posts will preview cases scheduled for argument and decision next term.

OA:  10.7.08
DC:  1.14.09

Herring v. United States (07-513) – 4th Amendment, police error

No. 07–513. Argued October 7, 2008—Decided January 14, 2009

Facts and Procedural History:  Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

SCOTUS HOLDING: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. Pp. 4–13.

(a) The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223. The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908–909. For example, it does not apply if police acted “in objectively reasonable reliance” on an invalid warrant. Id., at 922. In applying Leon’s good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left unresolved the issue confronted here: whether evidence should be suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7.

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August 19, 2009 in Supreme Court | Permalink | TrackBack (0)

Tuerkheimer on Control Killings

Deborah Tuerkheimer (University of Maine School of Law and DePaul University - College of Law) has posted Control Killings (Texas Law Review, Vol. 87, pp. 117-124, 2009) on SSRN. Here is the abstract:

Tuerkheimer A defendant on trial for murdering his intimate has forfeited his constitutional right to confront her as a witness, provided that, by taking her life, he intended to 'isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution.' This, the rule of forfeiture recently announced by the U.S. Supreme Court in California v. Giles, requires lower courts to consider the dynamics of battering when inferring the defendant’s intent. However, current legal conceptualizations of domestic violence homicide are underdeveloped. This comment on Professor Tom Lininger’s important contribution to a rich scholarly discourse treating the Confrontation Clause advances a conversation about what I call 'control killings.' My hope is that this conversation will penetrate the law and, in particular, inform judicial inquiries into the mens rea of the batterer who kills.

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August 19, 2009 | Permalink | TrackBack (0)

Grosso, Baldus & Woodworth on Civilian Aggravating Circumstances and the Military Death Penalty

Catherine M. Grosso (Michigan State University - College of Law), David C. Baldus (University of Iowa - College of Law) and George G. Woodworth (University of Iowa - Department of Statistics & Actuarial Science) have posted The Impact of Civilian Aggravating Circumstances on the Military Death Penalty: Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military Justice, 1984-2005 (University of Michigan Journal of Law Reform, Forthcoming) on SSRN: Here is the abstract:

In 1984 the U.S. Armed Forces adopted a capital punishment system modeled after those prevailing in over 30 states. This empirical study of charging and sentencing decisions in 104 death eligible military murders from 1984-2005 analyzes the extent to which the administration of the military death penalty has followed the civilian model required by military law or whether practice has overridden the law and rejected the intended civilianizing influence.

After a brief period between 1986 and 1990, the charging decisions of commanders and the sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently and essentially nullified the 1984 changes. Since 1990 a soldier accused of a murder with a direct impact on the ability of military commanders to run an effective and disciplined military is significantly more likely to face a capital court martial and be sentenced to death than a similarly situated soldier accused of a murder connected to the military only by the identity of the defendant.

While many in the military have worked to incorporate the protections of the Bill of Rights such as those present in the 1984 reforms into military criminal justice, others have resisted each such change as unnecessary and a direct threat to the ability to run an efficient and effective military. This study documents contemporary resistance as manifest in charging and sentencing decisions. We conclude that a limitation of death eligible murder to those directly impacting military command and control could reduce the risk of arbitrariness in the administration of the military death penalty.

While this study has important implications for the military criminal justice system and adds to the work of others calling for limiting the reach of the military criminal justice system to crimes directly impacting the ability of military leaders to run an efficient and effective military, its value extends beyond the realm of military justice. It documents the power of individual decision makers to overrule the written law and to do so without disclosure or public debate. As such, it is a study of the law in action and the importance of context in understanding the influence of written law.

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August 19, 2009 | Permalink | TrackBack (0)

Tuesday, August 18, 2009

A Recent Interesting Case on Computer Searches

The Ninth Circuit's decision in United States v. Payton is discussed in this interesting post by Orin Kerr over at The Volokh Conspiracy.  

August 18, 2009 | Permalink | TrackBack (0)

Grossman on Plea Bargaining

Grossman Steven P. Grossman  (University of Baltimore - School of Law) has posted An Honest Approach to Plea Bargaining (American Journl of Trial Advocacy, Vol. 29, No. 1, 2005) on SSRN. Here is the abstract:

In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

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August 18, 2009 | Permalink | TrackBack (0)

Tam on Remedies for Abuse of Executive Powers

Christian J. Tams  (University of Glasgow, School of Law) has posted The Abuse of Executive Powers: What Remedies? (COUNTERTERRORISM: DEMOCRACY'S CHALLENGE, Bianchi & Keller, Oxford, 2008) on SSRN. Here is the abstract:

This paper addresses remedies available to victims of illegal counter-terrorist measures adopted by States. It focuses on judicial remedies and outlines the legal parameters governing recourse to three types of institutions: (i) national courts of the State responsible for the violation; (ii) national courts of other States; and (iii) international (quasi-)judicial bodies, notably human rights courts. It shows that in proceedings before their national courts, States responsible for violations have frequently ignored the victims' human rights to remedies (whether in the form of apologies, compensation or criminal prosecution of perpetrators). Proceedings before foreign national courts, in turn, face considerable obstacles, notably issues of jurisdiction and immunity. While these do not arise in international proceedings, these proceedings are typically dependent on the prior exhaustion of local remedies; what is more, they are time-consuming and often do not lead to binding legal decisions. As a consequence, most victims of human rights abuses committed as part of counter-terrorist operations have not been able to obtain any remedy. This worrying tendency reflects the limited acceptance, in practice, of the international right to a remedy.


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August 18, 2009 | Permalink | TrackBack (0)

Fabricating DNA Evidence (Kolber)

Today's New York Times has an article about fabricating DNA evidence in a laboratory.  Unlike naturally-occurring DNA that could merely be planted at a crime scene, fabricated DNA would not require access to an original, physical specimen of a particular person's DNA, so long as one had access to his DNA database profile.  An excerpt from the NYT: 

Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases.

The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.”

In the abstract of their paper, the researchers state:

It turns out that standard molecular biology techniques such as PCR, molecular cloning, and recently developed whole genome amplification (WGA), enable anyone with basic equipment and know-how to produce practically unlimited amounts of in vitro synthesized (artificial) DNA with any desired genetic profile. This artificial DNA can then be applied to surfaces of objects or incorporated into genuine human tissues and planted in crime scenes. Here we show that the current forensic procedure fails to distinguish between such samples of blood, saliva, and touched surfaces with artificial DNA, and corresponding samples with in vivo generated (natural) DNA.

Quite coincidentally, we can be sure, most of the authors of the paper are affiliated with a company called "Nucleix" that markets a test to distinguish natural from artificially-created DNA.  They sell a test that can be used as a countermeasure to detect fabricated samples:

Nucleix’s test to tell if a sample has been fabricated relies on the fact that amplified DNA — which would be used in either deception — is not methylated, meaning it lacks certain molecules that are attached to the DNA at specific points, usually to inactivate genes.

I suspect that most geneticists would not at all be surprised about the possibility that DNA crime scene evidence could be fabricated.  It would be interesting to hear more independent opinions about just how easy or difficult the fabrication process would be, aside from the true, but unsurprising, comment by John Butler, “I think your average criminal wouldn’t be able to do something like that.”  Still, the article already gives us at least some reason to question the DNA found at crime scenes where people with the know-how and resources to fabricate DNA may be involved.

The New York Times article does not reveal whether there are countermeasures to the countermeasures.  Perhaps DNA can (or someday could) be artificially methylated in a way that makes it difficult to distinguish natural from artificially-created DNA.  If so, Nucleix's current test would likely prove insufficient, and some more refined test would be necessary.  The more difficult we can make it to fabricate a sample that seems natural, the more we can trust the evidence that passes our tests. 


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August 18, 2009 | Permalink | Comments (5) | TrackBack (0)

Guest Blogger James J. Duane (Regent Law School): The Extraordinary Mystery of Briscoe v. Virginia

[Last week, CrimProf noted this interesting email to the Evidence Law listserve from Professor Duane and asked if he would share it, in slightly modified form, with our readers.]

Duane In Briscoe v. Virginia (No. 07-11191), filed in May 2008, Professor Rich Friedman’s cert petition asked the U.S. Supreme Court to grant review to decide the following question:

“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”

That question, it seemed, was later answered with unmistakable clarity (wasn’t it?) in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2534, 2540 (2009), when the 5-member Court majority wrote:

"The text of the Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter.”

“Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820, 126 S.Ct. 2266 (“[The witness] was subpoenaed, but she did not appear at ... trial”). Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."

When I read that passage, I was surely one of many who assumed that the Court was preparing to dispose of Briscoe v. Virginia by granting Professor Friedman’s cert petition, presumably the very next day, and remanding for further proceedings in light of Melendez-Diaz. And so I was extremely surprised, four days later, when the Court simply granted the petition and set the case for oral argument. I find it impossible to believe that any of the five members of the majority in Melendez-Diaz thought that the issue presented in Briscoe had not already been decisively and intentionally resolved in Melendez-Diaz. I would be delighted to hear thoughts from any of you about this.

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August 18, 2009 | Permalink | Comments (3) | TrackBack (0)

Ginsburg and Shaffer on Empirical Work in International Law

Tom Ginsburg  (University of Chicago Law School) and Gregory Shaffer  (University of Minnesota - Twin Cities - School of Law) have posted Empirical Work in International Law on SSRN. Here is the abstract:

Empirical work in international law is rapidly increasing in quantity and sophistication. This trend reflects the expansion in number and importance of international organizations and courts, as well as developments in legal scholarship and the social sciences. This Handbook Chapter surveys empirical work on international tribunals, treaties and many substantive areas of law. Some of these areas, such as trade, investment and human rights, are the subject of burgeoning empirical literatures. Others, particularly private international law, have received less attention to date, but good work is beginning to emerge, as is the case with criminal law and investment law. We see the field continuing to expand and diversify in years to come, as many outstanding questions beg for analysis.

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August 18, 2009 | Permalink | TrackBack (0)

Simpson on Corporate Criminal Intent

William A. Simpson (Metropolitan State College of Denver) has posted Corporate Criminal Intent on SSRN. Here is the abstract: 

This paper is about the corporation as criminal defendant. In common-law legal systems a fully constituted criminal offence normally requires proof of both the proscribed action (actus reus) and criminal intent (mens rea). However, it appears highly artificial to describe corporate mens rea with ordinary language terms such as “knowledge,” “belief,” “desire,” or “intention.” After a review of common-law and philosophical approaches to imputing criminal intent to the corporate defendant, this paper proposes a behavioral approach to attributing mens rea to corporations and concludes with a review of the (UK) Corporate Manslaughter and Homicide Act 2007 which, it is submitted, adopts just such an approach.

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August 18, 2009 | Permalink | TrackBack (0)

Monday, August 17, 2009

USSC Issues Unusual Order in Death-Row Case Involving Innocence Claim

Responding to an original writ of habeas corpus (filed originally in the Supreme Court rather than in a lower court), the Court today ordered a district court to "“receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence.” The New York Times reports on the matter here. Lyle Denniston weighs in on the case at SCOTUSblog, and Orin Kerr has an analysis at The Volokh Conspiracy.

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August 17, 2009 | Permalink | TrackBack (0)

Featured Download: Joh on Breaking the Law to Enforce It

CrimProf hopes to provide for criminal law and procedure types the same convenient method for keeping up with recent SSRN posts that my former San Diego colleague, Larry Solum, provides for the general legal theory crowd on his Legal Theory Blog. I cannot hope to read every manuscript about which there might be sufficient interest to justify posting an abstract, but when I do have something more to say than "Here is the abstract," I will signal that fact by designating the manuscript as a "featured download." Of course, this designation should be taken more as an indication of my own personal interests than as an opinion about how the manuscript stacks up against all those that I haven't read.

Here's the first:

Joh Elizabeth E. Joh  (U.C. Davis School of Law) has posted a comprehensive and nuanced treatment of a problem described well by its title: Breaking the Law to Enforce it: Undercover Police Participation in Crime (Stanford Law Review, Vol. 62). Here is the abstract:

In Breaking the Law to Enforce It: Undercover Participation in Crime, I draw attention to a common but seldom examined police practice: permitting undercover police to engage in criminal activity in order to further an investigation. In covert operations police have, for example, established fencing businesses that paid cash for stolen goods and testified falsely in fictitious legal cases in actual courts. This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. And to the extent that authorized criminality presents mixed messages about their moral standing, it undermines social support for the police. Despite the fact that authorized criminality raises some of the most fundamental questions regarding the police in a democratic society, it has seldom been the topic of scholarly investigation. Moreover, there is little meaningful regulation of a policing practice that is rich in complexity and paradox. By drawing attention to the harms posed by authorized criminality, the article invites a broader discussion about the normative tradeoffs and limits of deceptive investigation.

There is much to admire in this piece, including its collection of some of the publicly known examples of the practice, analysis of the various rules that bear on the practice indirectly, overview of the occasional efforts to regulate it, review of the risks posed to undercover agents by their activities, balanced assessment of reform possibilities, and suggestion of reasons that academics might not have paid more attention to this aspect of police practice. I might be more receptive than Professor Joh to the possibility that internal departmental guidelines, even if somewhat general and unenforceable (like current federal guidelines), might be both salutary and the best that we can hope for here, but differences of this kind are to be expected when difficult issues are at hand.


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August 17, 2009 | Permalink | TrackBack (0)

Raban on Suggestive and Necessary Identification Procedures

Ofer Raban (University of Oregon - School of Law) has posted On Suggestive and Necessary Identification Procedures on SSRN. Here is the abstract:

Due Process doctrine allows criminal defendants to challenge the admissibility of suggestive identification procedures and consequent in-court identification. Despite the paramount importance of identification evidence in criminal trials, Supreme Court precedents on the subject have been confusing and confused. The result today is common misapplication of proper Due Process doctrine: lower courts habitually admit evidence of suggestive identification procedures, and allow consequent in-court identifications, if they find such procedures to have been “necessary,” a concept that is often left ill defined. These courts’ analysis, though grounded in the very first Supreme Court case on the subject, has been repudiated by subsequent Supreme Court cases and, in any event, makes little sense. Whether necessary or unnecessary, evidence of suggestive identification procedures, and any consequent in-court identifications, must be excluded from trial unless supported by sufficient indicia of reliability.

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August 17, 2009 | Permalink | TrackBack (0)

Ristroph on State Intentions and the Law of Punishment

Alice Ristroph (Seton Hall University - School of Law) has posted State Intentions and the Law of Punishment (Journal of Criminal Law & Criminology, vol. 98, No. 4, pp. 1353-1406, Summer 2008) on SSRN. Here is the abstract:

Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests. This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent. As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts. Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context. If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.

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August 17, 2009 | Permalink | TrackBack (0)

"Getting Smart on Crime"

The New York Times published this op-ed piece on Saturday. which Douglas Berman summarized and discussed on his excellent Sentencing Law and Policy blog. The post also usefully collects previous posts addressing similar themes--that our long-standing attraction to harsh sentences comes at substantial and likely unsustainable costs.


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August 17, 2009 | Permalink | TrackBack (0)

Obvious and Ugly Surveillance as Crime-Fighting Technique

The Wall Street Journal reports on what's playing in Peoria. Here's the lead:

PEORIA, Ill. -- This industrial city, hard hit by the recession, has found a new, low-budget way to fight crime: Park an unmanned, former Brink's truck bristling with video cameras in front of the dwellings of troublemakers.

Police here call it the Armadillo. They say it has restored quiet to some formerly rowdy streets. Neighbors' calls for help have dropped sharply. About half of the truck's targets have fled the neighborhood.

"The truck is meant to be obnoxious and to cause shame," says Peoria Police Chief Steven Settingsgaard.

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August 17, 2009 | Permalink | TrackBack (0)

Junior Scholars Paper Competition Deadline Sept. 1

The chair of the AALS criminal justice section, David Harris (Pittsburgh), sends along the following information from the section's spring newsletter. If you are no longer junior yourself, pass the word on to a junior colleague:

The Criminal Justice Section announces our annual call for papers for our Junior Scholars Paper Competition. As in past years, the author of the best paper will be recognized at the Criminal Justice Section luncheon at the 2010 AALS Annual Meeting in New Orleans.

Any section member who has been a full-time law school faculty member for ten years or fewer is eligible. Submissions will be evaluated anonymously by the Section's officers or by a panel of individuals designated by the Section Chair. Papers should be submitted by September 1, 2009 to the Section Chair, David Harris, through his administrative assistant, Patty Blake, at, to assure anonymous review. Papers accepted for publication before September 1, 2009, and papers submitted by previous Competition winners, are not eligible.

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August 17, 2009 | Permalink | TrackBack (0)

Top Ten Recent Criminal Law and Procedure Downloads

Ssrn logo CrimProf understands that manuscript downloads are not dispositive of manuscript quality, but downloads do provide some information about interest in recent drafts, and so here are the manuscripts most often downloaded from SSRN within the last 60 days.

Rank Downloads Paper Title
1 199 Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions against Emerging Markets
Andrew Brady Spalding,
University of Mumbai (Bombay),
2 135 Minds, Brains, and Norms
Michael S. Pardo, Dennis Patterson,
University of Alabama School of Law, Rutgers University School of Law, Camden,
3 112 Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases
Dan M. Kahan,
Yale University - Law School,
4 97 The Prosecutor as Regulatory Agency
Rachel E. Barkow,
New York University - School of Law,
5 81 A Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making
Barbara O'Brien,
Michigan State University - College of Law,
6 77 The Unexceptionalism of Evolving Standards
Corinna Lain,
University of Richmond - School of Law,
7 75 Neoliberal Penality: A Brief Genealogy
Bernard E. Harcourt,
University of Chicago - Law School,
8 74 Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama
Ian F. Haney-Lopez,
UC Berkeley School of Law,
9 71 Defending 'Terrorism': Justifications and Excuses for Terrorism in International Criminal Law
Ben Saul,
University of Sydney - Faculty of Law,
10 71 Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction
Adeno Addis,
Tulane University - School of Law, 

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August 17, 2009 | Permalink | TrackBack (0)