CrimProf Blog

Popofsky on the Rule of Lenity in the Sherman Act

Mark S. Popofsky  (adjunct faculty, Georgetown University Law Center) has posted The Section 2 Debate: Should Lenity Play a Role? (Rutgers Business Law Journal, Vol. 7, 2010) on SSRN. Here is the abstract:

The Supreme Court’s recent decision in Illinois Tool Works, by invoking the Rule of Lenity in enforcing the Sherman Act in a civil setting, raises a fundamental question concerning that statute: Should the theoretical possibility of criminal sanctions for monopolization offenses (Section 2 of the Sherman Act) narrow the Sherman Act in civil actions? Commentators have suggested that the answer might be yes. This Essay disagrees, and argues that Lenity properly plays no role in judicial elaboration of the Sherman Act. Although the Supreme Court’s insistence that a statute with both civil and criminal applications must mean the same thing regardless of enforcement setting appears to preclude different constructions of the Sherman Act depending on the selected enforcement tool, that merely raises the more fundamental issue of whether the Sherman Act is ambiguous in a lenity-triggering sense. The Essay demonstrates both that the Sherman Act’s underlying Rule of Reason standard does not trigger the Rule of Lenity and that applying lenity to narrow the Sherman Act would not serve any of the Rule of Lenity’s asserted purposes.

Commentary on Yesterday's Juvenile Life Without Parole Arguments

ACSBlog compiles some of the initial commentary. The Washington Post has coverage here. Crime and Consequences covers the arguments here and here.

Ramsey on Feminist Homicide Law Reform

Carolyn B. Ramsey (University of Colorado Law School) has posted Provoking Change: Comparative Insights on Feminist Homicide Law Reform (Journal of Criminal Law and Criminology, Vol. 100, Forthcoming) on SSRN.  Here is the abstract:

   

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for voluntary manslaughter mitigation.

Two insights guide this Article’s critique of partial excuses for murder. First, the revised legal history of intimate-partner homicide presented here demonstrates that the modern version of the provocation defense protects a broader class of angry, jealous, predominantly male defendants than the traditional doctrine of the nineteenth century did. Heat-of-passion claims have become the new “abuse excuse” for men. Second, battered woman syndrome evidence, which is now commonly admitted when abused women stand trial for murder, resonates uncomfortably with insanity claims. Reliance on such evidence ignores the fact that “rational moral actor” theories were also raised successfully in the past to defend domestic violence victims who killed their partners. Based on these insights, I argue that the most desirable aspects of the Australian reforms emphasize moral judgment and disfavor concessions to irrationality.

Inspired by Australian efforts, legislatures in the U.S. should implement comprehensive reform of homicide law and sentencing. Yet, even if American states retain rigid sentencing structures, this Article advocates the repeal of the extreme mental or emotional disturbance defense and a re-conceptualization of the provocation doctrine, guided by substantive equality principles, to require justified emotion. Provocation mitigation should be curtailed by categorical exclusions for killings arising from beliefs and passions, including lethal rage at infidelity or the termination of an intimate relationship, that do not comport with evolving social norms. Furthermore, although many battered women charged with murdering a violent spouse can successfully claim provocation under the excuse-based modern doctrine, reformist legislatures ought to provide a new intermediate outcome that fits better with the circumstances of such women’s cases. In the final analysis, a “rational moral actor” approach to partial defenses to murder has superior implications for the status of women, the integrity of the criminal law, and the conviction of the blameworthy than does a proliferation of psychological excuses unmoored from moral judgment about the defendant’s reasons for killing.

Transcript of Argument in Sullivan v. Florida

is here.

Court Reverses Finding of Ineffective Assistance in Per Curiam Opinion

You can find the opinion in Bobby v. Van Hook at the end of the order list here. Justice Alito concurred in a separate opinion.

"Supreme Court denies stay of execution for DC sniper"

Jurist has coverage here, including excerpts from the dissent from the denial of cert by Justice Stevens, joined by Justices Ginsburg and Sotomayor.

Transcript from argument in Graham v. Florida

is here.

New Directions for American Drug Policy at Berkeley Nov. 13

The 2009 Caleb Foote Symposium features Gil Kerlikowske, Director of the White House Office of National Drug Control Policy; Alfred Blumstein, Professor, Carnegie Mellon Heinz College, School of Public Policy and Management; Robert MacCoun, Professor, Berkeley Law and the Goldman School of Public Policy; and Peter Reuter, Professor, University of Maryland School of Public Policy & Department of Criminology. Further information is here.

"Imprisoning a Child for Life"

The New York Times editorializes against the practice, the subject of oral argument in two cases today. Doug Berman pulls together lots of useful commentary on the cases at Sentencing Law and Policy.

Weekend Roundup

CrimProf posts you may have missed over the weekend:

Friday

• Next Week's Criminal Law and Procedure Arguments
• Glazier on Combating Al Qaeda within the Law of War
• The Fourth Amendment, Email, and Computer Searches
• Clough on Corporate Criminal Complicity in Human Rights Abuses

Saturday

• Gabel on Familial DNA
• Post-Booker Sentencing
• Upcoming and Recent Arguments Previewed and Recapped
•  Hate Crimes and Thought Crimes

Sunday

• Top-Ten Recent SSRN Downloads
• "Weighing Life in Prison for Youths Who Didn’t Kill"
• CA Supreme Court Considers Whether DNA Profile Tolls Statute of Limitations
• The Richmond Rape and the Conflict of Duties

The Richmond Rape and the Conflict of Duties

The New York Times provides a harrowing perspective on why passersby didn't help. Here's an excerpt:

Summerlynn Sigler, an English teacher, said there were some boys planning to beat up the victim once she returned to school, on the grounds that she was to blame if her attackers received life sentences.

Daisy Santoya, a ninth grader, said schoolmates had accused her of snitching and told her to watch her back after she went to the police with information.

And some exasperated students said they could not understand why this particular rape was such a big deal. “What happened was bad,” said Abraham Tejeda, a sophomore. “I’m not going to lie, but she shouldn’t have put herself in that situation.”

Fear may also play a role in the reactions. Lizeth Franco, the daughter of the principal and a senior at Richmond High, said she believed that many people were intimidated by the “no snitching” ethos. “People didn’t speak up because they were afraid,” Lizeth said, “not because they’re animals and savages."

CA Supreme Court Considers Whether DNA Profile Tolls Statute of Limitations

Details are at FourthAmendment.com.

"Weighing Life in Prison for Youths Who Didn’t Kill"

Adam Liptak previews the issue to be argued before the Court tomorrow in today's New York Times.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	270	The Emerging Criminal War on Sex Offenders Corey Rayburn Yung, The John Marshall Law School, Date posted to database: August 18, 2009 [new to top 10]
2	223	The Torture Lawyers Jens David Ohlin, Cornell Law School, Date posted to database: September 10, 2009 [1st last week]
3	207	Blaming the Brain Steven K. Erickson, University of Missouri at Columbia - School of Law, Date posted to database: September 12, 2009 [2nd last week]
4	162	Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended Frank O. Bowman III, University of Missouri School of Law, Date posted to database: September 10, 2009 [3rd last week]
5	157	Finding Bernie Madoff: Predicting Fraud by Investment Managers Stephen G. Dimmock, William Christopher Gerken, Michigan State University - Department of Finance, Auburn University - Department of Finance, Date posted to database: September 11, 2009 [5th last week]
6	154	Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms Frederick Schauer, University of Virginia School of Law, Date posted to database: August 13, 2009 [4th last week]
7	149	Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional Colin Miller, John Marshall Law School, Date posted to database: August 18, 2009 [6th last week]
8	132	Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory Paul H. Robinson, Michael T. Cahill, Daniel M. Bartels, University of Pennsylvania Law School, Brooklyn Law School, Center for Decision Research, University of Chicago GSB, Date posted to database: September 23, 2009 [10th last week]
9	128	Governing Corporate Compliance Miriam H. Baer, Brooklyn Law School, Date posted to database: September 16, 2009
10	114	Incarceration American-Style Sharon Dolovich, University of California, Los Angeles - School of Law, Date posted to database: October 13, 2009 [new to top 10]