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

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Sunday, March 21, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply:

Rank Downloads Paper Title
1 395 The Emerging Law of Detention: The Guantanamo Cases as Lawmaking
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
2 263 The Greatest Legal Movie of All Time: Proclaiming the Real Winner
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
3 244 How Does International Law Work: What Empirical Research Shows
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: December 19, 2009 [4th last week]
4 200 Vagueness Challenges to the Computer Fraud and Abuse Act
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009 [5th last week]
5 173 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [6th last week]
6 170 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform
Jeannie Suk,
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [7th last week]
7 151 A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?
Shannon K. Calt,
Lewis & Clark Law Review,
Date posted to database: January 24, 2010 [8th last week]
8 149 ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities
Yael Ronen,
Minerva Center, Faculty of Law, Hebrew University of Jerusalem,
Date posted to database: January 11, 2010 [9th last week]
9 124 Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?
James Gwin,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 21, 2010 [new to top ten]
10 123 The Undiscovered Country: Execution Competency & Comprehending Death
Jeffrey L. Kirchmeier,
CUNY School of Law,
Date posted to database: February 5, 2010 [new to top ten]

March 21, 2010 | Permalink | Comments (0)

Saturday, March 20, 2010

Harmon on Proactive Policing Reform

Harmon rachel Rachel Harmon  (University of Virginia School of Law) has posted Promoting Civil Rights Through Proactive Policing Reform (Stanford Law Review, Vol. 62, 2009) on SSRN. Here is the abstract:

Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring misconduct, such as civil suits under § 1983 and the exclusionary rule, have proved inadequate to force departmental change. 42 U.S.C. § 14141 was passed in 1994 to allow the Justice Department to sue police departments to force institutional reform. Scholars initially hailed § 14141 as a powerful tool for reducing unconstitutional police abuse. The Justice Department, however, has sued few police departments. This Article contends that § 14141’s greatest potential has been overlooked. Limited resources will always mean that § 14141 can be used to force reform on only a limited number of police departments. But § 14141 could also be used to induce reform in many more. This goal requires a § 14141 litigation strategy designed to motivate proactive reform in more departments than the Justice Department can sue. The key components of this strategy are a “worst-first” litigation policy that prioritizes suits against police departments with the worst indicia of misconduct, and a policy that grants a “safe harbor” from suit for police departments that voluntarily adopt best practice reforms. This Article also explains why this proactive § 14141 enforcement strategy would be more efficient at reducing police misconduct than current enforcement policies, proposals to reform § 14141 by adding private plaintiffs, and alternative mechanisms by which the federal government could regulate police department reform.

March 20, 2010 | Permalink | Comments (0)

Friday, March 19, 2010

Katner on Delinquency and Daycare

Katner david David R. Katner (Tulane University - School of Law) has posted Delinquency & Daycare (Harvard Law & Policy, Vol. 4, pp. 49-72, 2010) on SSRN. Here is the abstract:

As the nation faces policy challenges over juvenile delinquency and subsequent crime, one all-but-forgotten option remains as promising as ever despite its virtual absence in recent national discussions and debates: a comprehensive daycare and after-school care policy. For decades, social scientists in this country have examined various designs of early educational and daycare programs, some promising tremendous alterations in the lives of participants and others offering far more modest achievements. Today, however, long term studies provide a much clearer picture of how early child care programs and after-school programs offer significant benefits for communities. Longitudinal evidence suggests that early childhood intervention programs, which buffer the effects of delinquency risk factors, help prevent chronic delinquency and later adult offending. After-school care programs also provide healthy alternatives to otherwise unsupervised adolescent behavior and hopefully spare children and their communities the expense, fear, and suffering which often accompanies delinquent misconduct and subsequent adult criminal misconduct. Overall, early intervention programs help reduce risk factors that contribute to delinquent behavior and later adult offending, while after-school programs create activities for juveniles during the time period when many delinquent acts occur. European governments have funded early chidcare and educational programs for decades, and the time seems appropriate for this country to thoroughly review their programs and to consider following their lead.

March 19, 2010 | Permalink | Comments (1)

Armacost on Arizona v. Gant

Armacost barbara Barbara E. Armacost (University of Virginia School of Law) has posted Arizona V. Gant: Does it Matter? (2009 Supreme Court Review, 2010) on SSRN. Here is the abstract:

Prior to the Supreme Court’s recent opinion in Arizona v Gant, it was standard practice under New York v Belton for police to conduct a search incident to arrest (SITA) of the passenger compartment whenever they arrested the driver or a recent occupant of the vehicle. Police officers had begun to treat the SITA of a vehicle as a powerful investigative tool, using traffic stops and arrests to get a free search for evidence of more serious crimes At least as a formal matter, Arizona v Gant changed all this. In Gant the Supreme Court reviewed a Fourth Amendment challenge to an automobile search incident to arrest conducted after the driver had been arrested, handcuffed and secured in the police car. The Court held that police may not do a SITA of an automobile once the arrestee “has been secured and cannot access the interior of the vehicle” unless it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” For all practical purposes this holding means the end of Belton SITAs. It is standard protocol for police to order a potential arrestee out of his automobile, frisk him, handcuff him, and secure him in the officer’s vehicle. This means that SITAs of automobiles will almost never be justified.

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March 19, 2010 | Permalink | Comments (0)

Giannelli on Independent Crime Labs

Giannelli_paul Paul C. Giannelli (Case Western Reserve University School of Law) has posted Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.

March 19, 2010 | Permalink | Comments (1)

Thursday, March 18, 2010

Slobogin on Insanity and the Integrationist Test

Slobogin_big Christopher Slobogin (Vanderbilt University - School of Law) has posted A Defense of the Integrationist Test as a Replacement for the Special Defense of Insanity (Texas Tech Law Review, Vol. 42, 523-542) on SSRN. Here is the abstract:

This article, written for a symposium on “Criminal Law and the Excuses,” defends the “Integrationist” approach to analysis of the exculpatory effect of mental disability that I developed in Chapter Two of my book, Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty. The book argues that the special nature of the insanity defense should be reconsidered now that modern criminal law, in particular the Model Penal Code, has subjectivized affirmative defenses such as self-defense and duress for people who are not mentally ill. More specifically, the claim is that these latter defenses capture the universe of people who should be excused due to mental illness, a claim which, if accepted, means that people with mental illness can be integrated into the culpability framework that applies to people who are not mentally ill and need no longer be handled through an independent excuse doctrine. Since the book was published in 2006, several commentators, including Richard Bonnie, Michael Corrado, Paul Litton, Matt Matravers, Stephen Morse, and Susan Rozelle, have registered objections to it. These criticisms can be organized under three general categories: the Integrationist Test is under-theorized; it fails to exculpate offenders who clearly should be excused; and it suffers from implementation difficulties. This article responds to these objections.

March 18, 2010 | Permalink | Comments (1)

Donahue on State Secrets

Donohue laura Laura Donohue (Georgetown University Law Center) has posted The Shadow of State Secrets (University of Pennsylvania Law Review) on SSRN. Here is the abstract:

Despite the recent explosion in scholarship focused on state secrets, very little is known about how the privilege actually works. This article fills the lacuna, demonstrating that the shadow of state secrets casts itself longer than previously acknowledged. The 2001-2009 period proves illuminating. The article begins with disputes related to government contractors, where breach of contract, patent disputes, trade secrets, fraud, and employment termination cases emerged, proving remarkable in their frequency, length, and range of technologies. Wrongful death, personal injury, and negligence extended beyond product liability to include infrastructure and services, as well as conduct of war. Empirical research suggests a conservative executive branch, more likely to intervene when breach of contract, trade secrets, or patent disputes present themselves, and unlikely - once it asserts the privilege - to back down. Critically, the expansion of the military-industrial complex appears to be giving birth to a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets claim. The government also may depend on a corporation for a key aspect of national defense - thus creating an incentive to protect the company from financial penalties associated with bad behavior. The article next turns to the telecommunications cases that arose out of the NSA’s warrantless wiretapping program.

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March 18, 2010 | Permalink | Comments (0)

Tuesday, March 16, 2010

Rosenthal on Damages for Wrongful Convictions

Rosenthal_Lawrence Lawrence Rosenthal (Chapman University - School of Law) has posted Second Thoughts on Damages for Wrongful Convictions (Chicago-Kent Law Review, Vol. 85, No. 1, 2010) on SSRN. Here is the abstract:

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in the criminal justice system as to render this rationale applicable. Moreover, because police and prosecutors respond to political and not economic incentives, the eonomic rationale for strict liability is unsatisfactory.

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March 16, 2010 | Permalink | Comments (2)

Hafemeister on Society's Response to Child Abuse

Thomas L. Hafemeister (University of Virginia School of Law)Hafemeister_07 has posted Castles Made of Sand? Rediscovering Child Abuse and Society’s Response (Ohio North University Law Review, Forthcoming) on SSRN.  Here is the abstract:
 
It has long been recognized that stress, unemployment, and financial problems are risk factors for child abuse. Not surprisingly, as the economy has deteriorated, reports of and attention to child abuse have increased. Society has come a long way from the “Mary Ellen Wilson” era of the 1870s when the detection of child abuse was sporadic and random, with poorly-suited tools borrowed to craft a response. But child abuse has now for almost 150 years been widely recognized as a recurrent, pervasive problem with potentially tragic short- and long-term consequences for a staggering number of children that calls for a well conceived and executed societal response. The consensus is, however, that society is neither adequately preventing or identifying child abuse, nor appropriately responding to the needs of abused children. This Article provides an extensive and comprehensive review of society’s response to child abuse, including legislative efforts to redress it. In particular, this Article describes (1) the nature and impact of child abuse and the factors that contribute to it, (2) the evolution of this country’s response to child abuse and how we currently address it, and (3) how this country can and must do better. As has often been noted, a society should be measured by how well it treats its most vulnerable citizens. Preventing and appropriately responding to child abuse should be at the top of any ordered society’s agenda.

March 16, 2010 | Permalink | Comments (0)

Monday, March 15, 2010

"Eleventh Circuit Decision Largely Eliminates Fourth Amendment Protection in E-Mail"

Orin Kerr has this post at The Volokh Conspiracy. The case is here.

March 15, 2010 | Permalink | Comments (1)

Garrett on DNA and Due Process

Brandon L. Garrett (University of Virginia School of Law) Garrett739 has posted DNA and Due Process (Fordham Law Review Vol. 78, 2010) on SSRN.  Here is the abstract:
 
The Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the U.S. the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that contrary to early accounts, the Court did not reject a constitutional right to post-conviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’ majority opinion proceeded to carefully fashion an important, but qualified and derivative procedural due process right. While denying relief to Osborne for narrow factual and procedural reasons, the Court’s ruling swept more broadly. The Court held that states with post-conviction discovery rules, as almost all have enacted, may not arbitrarily deny access to post-conviction DNA testing, and then pointed to the generous provisions of the federal Innocence Protection Act as a model for an adequate statute. The Court also continued to assume that litigants may assert constitutional claims of actual innocence in habeas proceedings. In this Essay, I explore the contours of the Osborne due process right, its
larger implications for constitutional interpretation, and more specifically, whether the decision has the potential to create pressure on the States to provide meaningful avenues to for convicts to litigate their innocence.

March 15, 2010 | Permalink | Comments (0)

Sunday, March 14, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 388 The Emerging Law of Detention: The Guantanamo Cases as Lawmaking
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
2 249 The Greatest Legal Movie of All Time: Proclaiming the Real Winner
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010 [4th last week]
3 240 The Case Against the Goldstone Report: A Study in Evidentiary Bias
Alan Dershowitz,
Harvard Law School,
Date posted to database: January 27, 2010 [5th last week] 
4 235 How Does International Law Work: What Empirical Research Shows
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: December 19, 2009 [6th last week]
5 194 Vagueness Challenges to the Computer Fraud and Abuse Act
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009 [7th last week] 
6 162 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [8th last week]
7 151 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform
Jeannie Suk,
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [9th last week]
8 140 A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?
Shannon K. Calt,
Lewis & Clark Law Review,
Date posted to database: January 24, 2010 [new to top ten]
9 133 ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities
Yael Ronen,
Minerva Center, Faculty of Law, Hebrew University of Jerusalem,
Date posted to database: January 11, 2010 [new to top ten]
10 111 Justice & Deterrence in International Law: Improper Limitations on Responses to Unlawful Aggression
Paul H. Robinson, Adil Ahmad Haque,
University of Pennsylvania Law School, Rutgers, The State University of New Jersey - School of Law-Newark,
Date posted to database: January 17, 2010 [new to top ten]

March 14, 2010 | Permalink | Comments (0)

Saturday, March 13, 2010

Back to the future on sentencing disparity

Doug Berman at Sentencing Law and Policy has an interesting post on the troubling implications of a recently released report by the U.S. Sentencing Commission indicating that the post-Booker increase in sentencing discretion has led to an increased correlation between sentence length and "the demographic characteristics" of some offenders. Doug's preliminary thought:

Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges.  I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders. 

March 13, 2010 | Permalink | Comments (0)

Objections to NYPD database holding information on those frisked and released

Bob Herbert's New York Times column is entitled Big Brother in Blue.

The speaker of the New York City Council and the head of the Council’s Public Safety Committee are calling on Police Commissioner Ray Kelly to get rid of his huge, noxious database of completely innocent New Yorkers who are stopped, questioned and often frisked by the police.

. . .

Ms. Quinn and Mr. Vallone believe it should stop. In a letter this week to Commissioner Kelly, they said that his intent to keep a permanent record of all the information gathered during the stops “raises significant privacy right concerns and suggests that these innocent people are more likely to be targeted in future criminal investigations.”

March 13, 2010 | Permalink | Comments (0)

Friday, March 12, 2010

"Mandatory minimum sentencing busts budgets and bloats non-violent prison rolls"

Deborah Fleischaker, director of state legislative affairs for Families Against Mandatory Minimums, has this piece at Jurist:

[T]here is no evidence to suggest that repealing mandatory sentences would lead to an increase in crime. In fact, states that have significantly reformed mandatory minimums, as Michigan did in 1998 and 2003, have not experienced increasing levels of crime. More and more states - notably, both red and blue states - are employing proven alternatives, such as drug courts and risk-based sentencing policies, which are more effective and cost-efficient than lengthy, mandatory sentences, especially when dealing with non-violent drug offenders.

March 12, 2010 | Permalink | Comments (0)

Ainsworth on Zappers

Richard Thompson Ainsworth (Lecturer, Boston University - School of Law) has posted Zappers - Retail VAT Fraud on SSRN. Here is the abstract:

Zappers skim cash sales at retail. Zappers are add-on programs used by merchants with electronic cash registers (ECRs) or point-of-sale (POS) systems. Zappers are smart and selective. They do not skim all sales, and they never skim credit card transactions. 

Although they are present in every jurisdiction, Zappers appear to be most widely used in developed economies that combine high levels of cash sales with high rates of consumption tax. Sweden, for example, has a cash-intensive economy, one of the world’s highest VAT rates (25%), and also reports that 70% of the ECRs in the country are either “… constructed for manipulation or have had software installed that allow sales to be manipulated (Zappers)…” 

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March 12, 2010 | Permalink | Comments (2)

Orenstein on Crawford's Effect on Domestic Violence Cases

Orenstein aviva Aviva Orenstein (Indiana University School of Law - Bloomington) has posted Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases on SSRN. Here is the abstract:

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully. 

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March 12, 2010 | Permalink | Comments (1)

Thursday, March 11, 2010

Innovation in Using Brain Imaging to Assess Memories (Kolber)

Here's the actual research, here's a news story, and here's an excerpt from the news story:

In the study, Maguire and her colleagues Martin Chadwick, Demis Hassabis, and Nikolaus Weiskopf showed 10 people each three very short films before brain scanning. Each movie featured a different actress and a fairly similar everyday scenario.

The researchers scanned the participants' brains while the participants were asked to recall each of the films. The researchers then ran the imaging data through a computer algorithm designed to identify patterns in the brain activity associated with memories for each of the films.

Finally, they showed that those patterns could be identified to accurately predict which film a given person was thinking about when he or she was scanned.

The results imply that the traces of episodic memories are found in the brain, and are identifiable, even over many re-activations, the researchers said.

The results reinforce the findings of a 2008 US study that showed similar scans can determine what images people are seeing based on brain activity.

-AJK

March 11, 2010 | Permalink | Comments (0)

11yo Charged With Murder May Be Tried as Adult (Kolber)

An eleven-year-old boy in Pennsylvania is charged with murdering his future stepmother.  A judge will soon decide whether he will be tried as an adult and possibly face life in prison without the possibility of parole.  (In unrelated cases, the Supreme Court is deciding whether juvenile life-without-the-possibility-of-parole sentences violate the Constitution).  Here's a clip from Good Morning America about the case, including comments from law professor Doug Berman (at about 2minutes 50seconds):


You'll notice that the Good Morning America writers seem to suggest (at about 3 minutes and 10 seconds) that brain imaging evidence was relevant to the Supreme Court's decision in Roper v. Simmons (which held that the death penalty is unconstitutional when applied to those who were younger than 18 at the time they murdered).  While there was quite a bit of brain imaging evidence provided to the Supreme Court, I don't think there's much reason to believe that brain imaging evidence affected the court's decision.

-AJK

March 11, 2010 | Permalink | Comments (0)

"Criminal Prosecutors Push for Tougher Gang Laws"

The story is at FindLaw. In part:

Police and prosecutors say changes would strengthen the law by defining "criminal gangs" and "criminal gang members," to broaden the types of crime considered gang activity.

. . .

Some of the proposed revision of the existing gang prevention act that would define a member as someone who fits at least two of these categories:

  • You proclaim yourself a member.
  • You use a gang's name, sign or symbol.
  • You associate with other known gang members and demonstrate aspiration to become a member by adopting style of dress, tattoos or hand signals or participate in gang activities.
  • The prison system has determined you are a gang member.
  • Photos or electronic communication provide evidence of your gang membership.

March 11, 2010 | Permalink | Comments (0)