CrimProf Blog

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

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Saturday, January 2, 2010

Kerr on the Computer Fraud and Abuse Act

Kerr  Orin S. Kerr  (George Washington University - Law School) has posted Vagueness Challenges to the Computer Fraud and Abuse Act (Minnesota Law Review, 2010 ) on SSRN. Here is the abstract:

This Article argues that the void for vagueness doctrine requires courts to adopt narrow interpretations of the Computer Fraud and Abuse Act. On its face, the CFAA has become extraordinarily broad. Recent amendments indicate that Congress has largely abandoned the job of identifying what conduct involving computers should or should not be a federal crime. Congress has broadened the statute so far that the courts must now narrowly construe the statute to save its constitutionality. 

This Article demonstrates how courts should narrowly construe the statute under the void for vagueness doctrine by focusing on two recent criminal prosecutions: United States v. Drew, which considered whether Terms of Service violations trigger CFAA liability, and United States v. Nosal, which asked whether it violates the CFAA for employees to access their employers’ computers in ways contrary to their employers’ interests. These two prosecutions show the critical role of vagueness doctrine in interpreting the CFAA, pointing to a future of judicial narrowing of the statute.


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January 2, 2010 | Permalink | Comments (1)

Friday, January 1, 2010

Government Misconduct Cited in Dismissal of Case Against Blackwater Defendants

The New York Times story is here:

On Thursday, Judge Ricardo M. Urbina threw out manslaughter and weapons charges against five Blackwater guards because he said prosecutors had violated the men’s rights by building the case based on sworn statements that had been given by the guards under the promise of immunity.

January 1, 2010 | Permalink | Comments (1)

Thursday, December 31, 2009

Re on the Congressional Overruling of Recent Eighth Amendment Cases

Richard M. Re has posted Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis. Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.

December 31, 2009 | Permalink | Comments (0)

Mosteller on Defenders and Protecting the innocent

Mostellerrobertp Robert P. Mosteller  (University of North Carolina at Chapel Hill - School of Law) has posted Protecting the Innocent: Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:

In this article I examine the importance of the role that defenders play in protecting the innocent to invigorate the drive for adequate indigent defense funding during a time of increased societal concern with unjust convictions. I also recognize the inherent dangers and difficulties in harnessing that societal concern. In Part I, I argue that for many defendants, including the most problematic types as demonstrated by DNA exonerations, innocence is not actually knowable to anyone in the system, even defense attorneys. These problematic cases in which the defendants are in fact innocent do not generally present themselves as innocence cases but instead only suggest possible weakness in the prosecution’s evidence, and the defense usually only attempts to raise reasonable doubts in the jury’s mind. Tried by well by adequately funded defense counsel, a percentage of these cases will still result in erroneous convictions of the innocent, but fewer of them. Moreover, innocent defendants will have received all society can actually guarantee in a system where humans decision-makers deal with uncertainty, which is a fair proceeding.

In Part II, I examine a proposed partial solution to inadequate funding, which is a specific application of a rationing system, specifically examining a proposal that attempts to give priority to representing the likely innocent. I conclude that this proposal, even if logically justifiable and plausible as a professional goal of public defenders, can provide no practical guidance that would meaningfully offset inadequate resources. Moreover, it could undermine the arguments for adequate defense funding by suggesting that the priority cases of the likely innocent can be defended well if defenders would simply focus their efforts on observable pretrial indicators.

In Part III, I highlight one of what I believe is one of the most realistic and workable proposals to improve indigent defense, which is the creation of a federally supported center to evaluate and finance improvements and reform in state indigent defense. This proposal would have significant impact, and it is politically viable. This reform effort would greatly benefit from the support of the innocence movement. I also address another recent proposal that supports the effort to improve indigent defense through federal support that goes awry with an apparent quid pro quo that would further restrict federal habeas. It promises to protect the innocent, but does so only for those rare cases where innocence is clear, and it would eliminate review of ineffective assistance of counsel and Brady claims, which present substantial reasons to doubt guilt when meritorious and constitute the best showing that innocent defendants can usually ever make.

In Part IV, I explore preliminary strategies for the use of innocence by those leading the battle for increased defense funding. The argument has its challenges and pitfalls, but it is substantially completely valid. Defender leadership must develop the supporting facts and examples and present them effectively.

December 31, 2009 | Permalink | Comments (1)

Wednesday, December 30, 2009

Wexler on Reintegrating inmates

Wexler  David B. Wexler (University of Arizona - James E. Rogers College of Law) has posted Retooling Reintegration: A Reentry Moot Court (Chapman Journal of Criminal Justice, forthcoming 2010 ) on SSRN. Here is the abstract:

This essay proposes that correctional institutions expose interested inmates to programs involving elements of restorative justice,therapeutic jurisprudence, and relapse prevention planning, culminating in a transition and relapse prevention plan that can form the basis of a proposed parole plan. Then, the prisoner about to be considered for parole can try out the plan before peers in a Reentry Moot Court. Such an exercise should be of practical and rehabilitative use both to the prisoner defending his or her plan and to the peer prisoners who will hone their own problem solving skills by participating in the Moot Court process.


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December 30, 2009 | Permalink | Comments (0)

Kim, Barak, and Shelton on the "CSI-Effect" on Jurors

Shelton  Young S. Kim  (Eastern Michigan University), Gregg Barak  (Eastern Michigan University), and Donald E. Shelton  (Eastern Michigan University) have posted Examining the 'CSI-Effect' in the Cases of Circumstantial Evidence and Eyewitness Testimony: Multivariate and Path Analyses (Journal of Criminal Justice, Vol. 37.5, pp. 452-460, 2009) on SSRN. Here is the abstract:


As part of a larger investigation of the changing nature of juror behavior in the context of technology development, this study examined important questions unanswered by previous studies on the “CSI-effect.” In answering such questions, the present study applied multivariate and path analyses for the first time. The results showed that (a) watching CSI dramas had no independent effect on jurors' verdicts, (b) the exposure to CSI dramas did not interact with individual characteristics, (c) different individual characteristics were significantly associated with different types of evidence, and (d) CSI watching had no direct effect on jurors' decisions, and it had an indirect effect on conviction in the case of circumstantial evidence only as it raised expectations about scientific evidence, but it produced no indirect effect in the case of eyewitness testimony only. Finally, implications of the present study as well as for future research on the “CSI-effect” on jurors are discussed.


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December 30, 2009 | Permalink | Comments (0)

Tuesday, December 29, 2009

Humbach on the Biology of Blame

Jhumbach  John A. Humbach  (Pace University School of Law) has posted The Humane Principle and the Biology of Blame: Evolutionary Origins of the Imperative to Inflict (Proceedings of Global Conference on Perspectives on Evil and Human Wickedness) on SSRN. Here is the abstract:

The idea that some people “deserve” to suffer has enormous social implications. People insist there is a moral right to cause human suffering. However, as the circle of humans deemed entitled to full human dignity grows wider, the next logical step is to adopt a general principle that any deliberate increase in human suffering is wrong, without exception Such a Humane Principle, to replace the old principle of “just deserts,” might be provisionally formulated as follows: "Any act to cause human suffering is wrong and must be avoided unless it is honestly meant as the most humane alternative that the situation presents, according equal concern to all who are affected." Resistance to such a principle is considerable because, unfortunately, people draw unwarranted moral conclusions from their feelings of blame. But these feelings are merely adaptations to conditions that have long ceased to apply. Causing deliberate harm to others has ceased to be either a socially adaptive or morally defensible mode of social control.


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December 29, 2009 | Permalink | Comments (0)

Klamberg on International Criminal Law in Sweden

Mark_Klamberg  Mark Klamberg  (Stockholm University) has posted International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case (International Criminal Law Review, Vol. 9, pp. 395-409, 2009) on SSRN. Here is the abstract:

On 18 December 2006, the Stockholm district court convicted Jackie Arklöv for a crime against international law. It was the first, and until the present date, the only time, liability for a crime against international law has been tried before a Swedish court. This article presents the law applied by the Court, draws attention to the principles of legality, ne bis in idem, and discusses whether a national court in a dualistic legal system can impose criminal responsibility with reference to customary international law.


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December 29, 2009 | Permalink | Comments (0)

Monday, December 28, 2009

"Florida's 2005 Stand Your Ground law, which broadens a citizen's right to use deadly force, is vexing courts across the state"

The story is in the Miami Herald:

No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.

Moorer claimed self-defense. Police detectives begged to differ.

But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ``Stand Your Ground'' self-defense law that broadened a citizen's ability to use deadly force.

``There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,'' said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law ``cheapens human life.''

Hat tip to Ted Gest.

December 28, 2009 | Permalink | Comments (1)

Perlin on Therapeutic Jurisprudence in Incompetency and Insanity Cases

Michael L. Perlin  (New York Law School) has posted ‘Too Stubborn to Ever be Governed by Enforced Insanity’: Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases (International Journal of Law and Psychiatry, Vol. 33, No. 4/5, 2010) on SSRN. Here is the abstract:

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders . On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise , given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

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December 28, 2009 | Permalink | Comments (0)

Sunday, December 27, 2009

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 316 The Emerging Criminal War on Sex Offenders
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
2 314 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
3 176 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
4 172 Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al
David B. Kopel,
Independence Institute,
Date posted to database: November 22, 2009
5 160 The Experiential Future of the Law
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009
6 104 Two Ways to Think About the Punishment of Corporations
Albert W. Alschuler,
Northwestern University - School of Law,
Date posted to database: October 22, 2009 [8th last week]
7 90 Why Care About Mass Incarceration?
James Forman,
Georgetown University Law Center,
Date posted to database: October 16, 2009 [10th last week]
8 89 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 [9th last week]
9 84 How Movies Created the Financial Crisis
Larry E. Ribstein,
University of Illinois College of Law,
Date posted to database: November 3, 2009 [new to top ten]
10 78 Police-Induced Confessions: Risk Factors and Recommendations
Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo, Allison D. Redlich,
John Jay College of Criminal Justice, Northwestern University - School of Law, Bluhm Legal Clinic, University of Massachusetts at Worcester - University of Massachusetts Medical School, University of London - King's College London, University of San Francisco - School of Law, Author - affiliation not provided to SSRN,
Date posted to database: October 7, 2009 [new to top ten[

December 27, 2009 | Permalink | Comments (0)