CrimProf Blog

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

Tuesday, November 10, 2009

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.

November 10, 2009 | Permalink | Comments (0)

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.

November 10, 2009 | Permalink | Comments (0)

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:Ramsey
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.

Continue reading

November 10, 2009 | Permalink | Comments (1)

Monday, November 9, 2009

Transcript of Argument in Sullivan v. Florida

is here.

November 9, 2009 | Permalink | Comments (0)

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.

November 9, 2009 | Permalink | Comments (0)

"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.

November 9, 2009 | Permalink | Comments (0)

Transcript from argument in Graham v. Florida

is here.

November 9, 2009 | Permalink | Comments (0)

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.

November 9, 2009 | Permalink | Comments (0)

"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.

November 9, 2009 | Permalink | Comments (0)

Weekend Roundup

Sunday, November 8, 2009

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."

November 8, 2009 | Permalink | Comments (0)

CA Supreme Court Considers Whether DNA Profile Tolls Statute of Limitations

Details are at

November 8, 2009 | Permalink | Comments (0)

"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.

November 8, 2009 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logo 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]

November 8, 2009 | Permalink | Comments (0)