Saturday, December 26, 2009
Kimani Paul-Emile (Fordham University - School of Law) has posted Making Sense of Drug Regulation: A Theory of Law for Drug Control Policy (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model to the regulation of four common drugs: cocaine, marijuana, tobacco and anabolic steroids. Although much has been written on the topic of licit and illicit drug regulation, none of the scholarship in this literature has attempted to explain through an examination of pharmaceutical, illicit, and over-the-counter drugs how the apparent inconsistencies and incoherence of the U.S. system of drug control have been achieved and sustained. This work fills the gap in this literature by proposing an innovative and comprehensive theoretical model for understanding how drugs can become “medicalized,” “criminalized” or deemed appropriate for recreational use, based upon little or no empirical evidence regarding the pharmacodynamics of the drug.
Friday, December 25, 2009
The Salt Lake Tribune covers the decision of the Utah Supreme Court here:
[A] judge refused to allow the expert, David Dodd, to testify and instead warned jurors about the dangers of eyewitness testimony with a jury instruction, which had been the common practice of courts for two decades, the opinion said.
Clopten appealed, and the Utah Court of Appeals affirmed his conviction. But the justices on Friday said the circumstances of Clopten's case -- mainly prosecutors' heavy reliance on eyewitness testimony -- are "exactly those under which the testimony of an eyewitness expert is most helpful to a jury."
. . .
Chief Justice Christine Durham wrote for the court: "We are not mandating the admission of eyewitness expert testimony in every case. We expect, however, that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony."
Associate Chief Justice Matthew Durrant and Michael Wilkins dissented in part, saying the high court should not remove the discretion of trial judges and create a presumption in favor of eyewitness expert testimony.
Thursday, December 24, 2009
Wednesday, December 23, 2009
Regina Austin (University of Pennsylvania Law School) has posted Women’s Unequal Citizenship at the Border: Lessons from Three Nonfiction Films about the Women of Juárez (GENDER EQUALITY: DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP, Linda C. McClain, Johanna L. Grossman, eds., Cambridge University Press, 2009) on SSRN. Here is the abstract:
There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the private grief of their survivors should have been a cause for public national mourning. Finally, Battle of the Crosses (2005), the work of social scientists, offers a panoramic description of the complicated social terrain on which the Juárez femicides occurred and their meaning was fought over. Together, the films suggest how borders are constructed and “performed” through law and law enforcement in ways that jeopardize women’s rights as citizens. The films also show how women in turn challenge law and law enforcement to transcend the limitations of social, political, and economic borders and assert their right to equal citizenship.
Confronted with state intransigence in the face of the murders of dozens of young females, the women of Juárez used their traditional female roles as a springboard to political engagement. Overcoming the debilitating effect of class and ethnic marginality, patriarchal mass violence, and governmental corruption and lack of accountability, the women turned back the state’s effort to belittle the murders as private matters and the victims as deserving of their fate. The documentaries together provide a vivid case study that proves the importance of understanding the synthetic quality of borders and their relationship to women’s equal citizenship in a globalizing world where borders can pop up anywhere and at anytime.
Jenia Iontcheva Turner (Southern Methodist University (SMU) - Dedman School of Law) has posted Legal Ethics in International Criminal Defense (Chicago Journal of International Law, Winter 2010) on SSRN. Here is the abstract:
This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.
Tuesday, December 22, 2009
The L.A. Times story is here:
A state appellate court Monday rejected Roman Polanski's bid to have his 1977 child-sex prosecution dismissed but outlined a way that could end the long-running case without Polanski serving more time behind bars or returning to the American justice system he fled three decades ago.
In a 3-0 ruling, the 2nd District Court of Appeal suggested that Polanski ask to be sentenced in absentia for the statutory rape he admitted committing 32 years ago.
According to the three-justice panel, the sentencing hearing held in his absence would provide a forum for a Los Angeles County judge to evaluate Polanski's allegations of prosecutorial and judicial misconduct in the original handling of the case.
Year-to-year fluctuations don't tell us much. The long-term trends are that violent crime went way up in the 60s, 70s, and 80s, dropped sharply in the 90s and generally continued dropping at a slower rate in the decade now ending (the 00s?). Demographics are part of that, as Fox says, but the fact that we went soft on crime in the 60s and 70s and then toughened up in the late 80s is also a factor.
But we mustn't mention that, you see, because so many people are so heavily invested in telling us that it would be "smart on crime" to repeat the mistakes of the 60s.
Monday, December 21, 2009
The ABC News website has the story here.
Crime fell 4.4 percent nationwide in the first half of 2009 with the murder rate dropping a startling 10 percent, according to statistics released Monday by the FBI. The decline in murders is one of the more significant one-time decreases in recent memory, according to some criminologists.
Crime rates have been dropping since 2007, following a run up in violent crime during the middle part of the decade. FBI figures for 2005 showed that violent crime had increased 2.5 percent overall, one of the largest percentage increases in 15 years. Overall crime in the United States increased 3.7 percent in 2006.
The Wall Street Journal has the article here:
Attorneys for the fugitive director argued earlier this month that misconduct in the case was grounds for dismissal of a charge of having unlawful sex with a minor. They also contended Mr. Polanski didn't need to be present to argue for dismissal.
The court disagreed on both issues.
Robert P. Mosteller (University of North Carolina at Chapel Hill - School of Law) has posted Failures of the American Adversarial System to Protect the Innocent and Conceptual Advantages in the Inquisitorial Design for Investigative Fairness (Symposium on the Future of Adversarial Systems, Chapel Hill, NC, April 6, 2010) on SSRN. Here is the abstract:
The relative advantages and disadvantages of the adversarial system, as practiced in the United States, and modern European inquisitorial systems are often examined. In this Article, I continue that examination in the context of a new emphasis placed on the fair treatment of the innocent defendants, highlighted by the numerous DNA exonerations of defendants, many who faced the death penalty, unjustly convicted by the American adversarial system. I examine two significant failures of the American adversarial system and note a new basis to find merit in the inquisitorial design of the investigative process.
Sunday, December 20, 2009
This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases - and only in illegal re-entry cases. The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels. In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years - costing taxpayers up to $200,000 - because of a single prior conviction that could have occurred years or even decades ago.
|1||308||The Emerging Criminal War on Sex Offenders |
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
|2||307||The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights |
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009
|3||167||Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 |
Mary Ellen O'Connell,
Notre Dame Law School ,
Date posted to database: November 6, 2009 [7th last week]
|4||162||Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al |
David B. Kopel,
Date posted to database: November 22, 2009
|5||156||The Experiential Future of the Law |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009 [6th last week]
|6||122||White Collar Innocence: Irrelevant in the High Stakes Risk Game |
Ellen S. Podgor,
Stetson University College of Law,
Date posted to database: October 16, 2009 [8th last week]
|7||101||A Certain Uncertainty; an Assessment of Court Decisions for Tackling Corruptions in Indonesia 2001‐2008 |
Universitas Gadjah Mada,
Date posted to database: September 30, 2009 [9th last week]
|8||97||Two Ways to Think About the Punishment of Corporations |
Albert W. Alschuler,
Northwestern University - School of Law,
Date posted to database: October 22, 2009 [10th last week]
|9||87||Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play |
Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: October 13, 2009 [new to top ten]
|10||86||Why Care About Mass Incarceration? |
Georgetown University Law Center,
Date posted to database: October 16, 2009 [new to top ten]