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

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Monday, May 31, 2010

Stern on Homes and the Fourth Amendment

Stern stephanie Stephanie Stern  (Chicago-Kent College of Law) has posted The Inviolate Home: Housing Exceptionalism in the Fourth Amendment (Cornell Law Review, Vol. 95, 2010)  on SSRN. Here is the abstract:

This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.


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May 31, 2010 | Permalink | Comments (0)

Sunday, May 30, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 324 Disentangling Child Pornography from Child Sex Abuse
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010 [2nd last week]
2 242 Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction
Margaret Colgate Love, Gabriel J. Chin,
Law Office of Margaret Love, University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2010 [new to top ten]
3 218 Vigilante Justice: Prosecutor Misconduct in Capital Cases
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010 [4th last week]
4 201 Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law
John Mikhail,
Georgetown University - Law Center,
Date posted to database: March 23, 2010 [5th last week]
5 174 Recognizing Constitutional Rights at Sentencing
F. Andrew Hessick, Carissa Byrne Hessick,
Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 3, 2010 [7th last week]
6 169 Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses
Jelani Jefferson Exum,
University of Kansas School of Law,
Date posted to database: March 12, 2010 [8th last week]
7 163 Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency
Deborah Tuerkheimer,
DePaul University - College of Law,
Date posted to database: March 28, 2010 [9th last week]
8 158 The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell
John C. P. Goldberg, Benjamin C. Zipursky,
Harvard Law School, Fordham University - School of Law,
Date posted to database: March 24, 2010 [10th last week]
9 151 Ex Ante Regulation of Computer Search and Seizure
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 22, 2010 [new to top ten]
10 151 Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws
Melissa Hamilton,
University of Toledo College of Law,
Date posted to database: April 5, 2010 [new to top ten]

May 30, 2010 | Permalink | Comments (0)

Luban on the Conscience of a Prosecutor

Luban david David J. Luban  (Georgetown University Law Center) has posted The Conscience of a Prosecutor (Valparaiso University Law Review, Forthcoming) on SSRN. Here is the abstract:

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving lengthy sentences. Bibb’s superiors required him (over his protests) to defend the convictions in a hearing to determine if the men should be retried. He had exhaustively reinvestigated the case, including interviews with reluctant witnesses who it seemed unlikely that anyone but Bibb could get to testify. This essay delves into the facts of the case and includes interview material with Daniel Bibb. It defends Bibb’s conduct, and argues that rather than facing professional discipline (as some ethics experts suggested), Bibb deserves praise. The essay uses the episode to examine the meaning of familiar adage that prosecutors must seek justice, not victory; the question of whether a subordinate lawyer in an organization must defer to the judgment of his or her superiors; and the role of conscience in legal ethics.

May 30, 2010 | Permalink | Comments (0)

Friday, May 28, 2010

Logan on Justice O'Connor's Atwater Dissent

Logan wayne Wayne A. Logan  (Florida State University - College of Law) has posted Reasonableness as a Rule: A Paean to Justice O'Connor's Dissent in Atwater v. City of Lago Vista (Mississippi Law Journal, Vol. 79, p. 115, 2009) on SSRN. Here is the abstract:

This paper, part of a sympoisum dedicated to "great" Fourth Amendment dissents, examines Justice Sandra Day O'Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O'Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the "everyday lives of Americans." Atwater, combined with decisions issued before and after it, including Whren v. United States, Devenpeck v. Alford, and Virginia v. Moore, has afforded police historically unprecedented discretionary authority, examples of which are surveyed in the paper.

May 28, 2010 | Permalink | Comments (0)

Brown on Controlling Criminal Law

Brown darryl k Darryl K. Brown  (University of Virginia - School of Law) has posted Can Criminal Law Be Controlled? (Michigan Law Review, Vol. 108, No. 6, 2010) on SSRN. Here is the abstract:

Criminal law has long included far too many crimes of questionable merit — crimes of negligible wrongfulness, crimes that cause negligible harm, and crimes that require too little culpability on behalf of offenders. More recently, American criminal law in particular has imposed too much punishment — far more than it used to, far more than any other democratic nation. Douglas Husak’s new book Overcriminalization offers an account of the normative parameters that should describe and limit criminal law, as well as a set of doctrines or tests for achieving those constraints.

In this Review of Husak’s book, I describe Husak’s theory and explore why he directs his argument to legislatures, which caused most of the overcriminalization in the first place, rather than to courts. With respect to most pieces of the overcriminalization problem, I suggest he is probably right to do so, but for reasons other than those he implies. Legislatures are poor institutions for acting on principles that conflict with majority sentiments. Yet legislatures have a long track record of reducing overcriminalization as popular views change, and courts have contributed to that project largely only after legislatures have led the way. Moreover, debates leading to changes in criminal law have often occurred partially on terms Husak makes central to his thesis. Nonetheless, courts may be the better — if still faint — hope for moderating policies of overpunishment, which so far legislatures have largely proven unable to address.

May 28, 2010 | Permalink | Comments (0)

Thursday, May 27, 2010

Perry & Weimann-Saks on Stealing Sunshine

Perry ronen Ronen Perry (pictured) and Dana Weimann-Saks  (University of Haifa - Faculty of Law and University of Haifa) have posted Stealing Sunshine on SSRN. Here is the abstract:

“Stealing Sunshine” is a trial advocacy technique whereby an attorney discloses, in the opening statement or on direct examination of a witness, information that seems advantageous to the opponent’s case, before the latter elicits or reveals it, in order to mitigate its expected impact on fact-finders. Our study is the first to examine the efficacy of this tactic, both theoretically and empirically. Given the primacy of our work, we drew on existing literature on a related courtroom technique commonly known as “stealing thunder,” which is - in a sense - the mirror image of the tactic under scrutiny. We hypothesized that stealing sunshine, just like stealing thunder, would be helpful to a litigant’s case.

We experimentally tested the efficacy of the tactic when used by the prosecution in a criminal case. The results support our hypothesis. We found, inter alia, that fact-finders’ assessments of the measure of guilt and of the appropriate level of punishment in the Stealing Sunshine condition (where the prosecutor revealed positive information about the defendant) were significantly higher than in the Sunshine condition (where the defendant revealed the same information about himself). The difference between the two conditions with respect to the ultimate verdict (namely the dichotomous variable: guilty/not guilty) was statistically insignificant, yet consistent with our hypothesis.

May 27, 2010 | Permalink | Comments (0)

Buchhandler-Raphael on Sexual Abuse of Power

Michal Buchhandler-Raphael has posted Sexual Abuse of Power (University of Florida Journal of Law and Public Policy) on SSRN. Here is the abstract:

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex.

The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual relations that would acknowledge two much-needed components: the complainant’s state of mind (i.e. subjective willingness) and the parties’ mutual decision/agreement to engage in sex.

The second part of the Article focuses on the doctrinal implications of the above conclusions by offering a model that would enable criminalizing these abuses above and beyond the cases in which threats to harm are established. It aims to expose the links between sexual abuses of power and the definition of consent, namely, consent is not obtained when it is induced by fears and pressures stemming from sexual abuse of power, authority, trust, influence and dependence. To expand the scope of the term “sexual coercion”, the definition of authority must include additional forms of power, above and beyond the official or formal capacity to enforce obedience. It must incorporate the perpetrator’s ability to dominate, influence, affect, and control the actions and decisions of vulnerable victims in professional and institutional settings.

May 27, 2010 | Permalink | Comments (0)

Wednesday, May 26, 2010

Goldman on the Criminalization of Genocide

Goldman stanley Stanley A. Goldman  (Loyola Law School Los Angeles) has posted The Jew Who Met Himmler and Other Stories (Loyola of Los Angeles International and Comparative Law Review, Vol. 32, p. 109, 2009) on SSRN. Here is the abstract:

In this article Prof. Goldman examines the historical origins of the international criminalization of genocide and the goals the author of the law hoped to achieve by its passage and enforcement. The article tells the story of a little known, yet remarkable historical incident that demonstrates how the fear of criminal consequences might act to deter even the most monstrous perpetrators of genocide; even the man who was most responsible for the implementation of the Holocaust, Nazi Reichsfuhrer Heinrich Himmler.

May 26, 2010 | Permalink | Comments (0)

Pillsbury on Doubt in Criminal Judgment

Pillsbury sam Samuel H. Pillsbury  (Loyola Law School Los Angeles) has posted Fear and Trembling in Criminal Judgment (Ohio State Journal of Criminal Law, Vol. 2, 2010) on SSRN. Here is the abstract:

This review describes James Whitman's argument that the beyond a reasonable doubt standard for conviction in Anglo-American criminal law was developed to solve a moral and theological dilemma arising from the medieval change from clergy-directed trials by ordeals to the secular jury trial. Whitman writes that the beyond a reasonable doubt standard, like the jury unanimity rule, was designed primarily to assuage what he calls moral doubt, the concern that a decision-maker might condemn himself in the eyes of God by wrongfully convicting an accused of a capital offense. Whitman contends that this concern with decision-maker salvation was greater than any concern with an erroneous determination of the facts and that the greatest challenge for early modern decision-makers was not resolving contested facts but overcoming fear of the spiritual consequences of condemning another human being to death. Whitman contends that this makes the beyond a reasonable doubt standard ill-suited to the challenges of modern litigation, where the hard cases involve fact-finding and decision-makers generally do not fear for their souls in rendering a legal verdict. After considering this argument in both legal and theological terms, the reviewer develops a suggestion of the book’s author, that the early juror experience of "fear and trembling" in judging the most serious crimes might have a useful application to contemporary American criminal justice with its predilection for long terms of incarceration, especially by mandatory sentencing laws.

May 26, 2010 | Permalink | Comments (0)

Tuesday, May 25, 2010

Silva on Expungements and Pardons

Lahny R. Silva has posted Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders (University of Cincinnati Law Review, Forthcoming) on SSRN. Here is the abstract:

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The "tough on crime" rhetoric of the 80s and 90s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, "truth in sentencing" laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. Unlike the states however, the federal government does not have a legal mechanism in place that adequately reintegrates federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay.

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May 25, 2010 | Permalink | Comments (0)

"Private Prosecutors v. Private Prosecutions"

Kent Scheidegger has this post at Crime and Consequences fleshing out the Court's dismissal in Robertson v. U.S. ex rel Watson, previously reported here and involving a private prosecution for criminal contempt.

May 25, 2010 | Permalink | Comments (0)

Simons on Retributivism Refined

Simons ken Kenneth W. Simons  (Boston University - School of Law) has posted Retributivism Refined - Or Run Amok? (University of Chicago Law Review, Vol. 77, Forthcoming) on SSRN. Here is the abstract:

What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors — Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse — provide a controversial set of answers. Whether a criminal act does or does not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced to a single idea: “Do not be reckless; do not knowingly take risks that are clearly unjustifiable in light of your reasons for taking those risks.” Few scholars and even fewer legislators will be persuaded. Nevertheless, the authors have written an engaging, lively, philosophically astute book of remarkable breadth, depth, and originality.

In this Book Review, I first point out that, to some extent, the authors are consequentialists in retributivist clothing. Turning to the authors’ analysis of recklessness, I investigate two critical questions: Can recklessness really suffice as the sole criterion of culpability? (The answer, alas, is no.) And, is their requirement of “conscious awareness” of risk too demanding? (Indeed it is.) In the last section, I address a surprising phenomenon, the reappearance of the reasonable person as a central requirement of their culpability criterion, notwithstanding their unequivocal rejection of the reasonable person as part of a criterion of liability for culpable inadvertence to risk. I then critique that reincarnation.

May 25, 2010 | Permalink | Comments (0)

Kerr on Third-Party Doctrine in the Fourth Amendment

Kerr orin Orin S. Kerr  (George Washington University - Law School) has posted Defending the Third-Party Doctrine: A Response to Epstein and Murphy (Berkeley Technology Law Journal, Vol. 24, 2009) on SSRN. Here is the abstract:

This is a brief response to papers by Richard Epstein and Erin Murphy on the third-party doctrine of Fourth Amendment law. Epstein's paper was published as Richard A. Epstein, Privacy and the Third Hand: Lessons from the Common Law of Reasonable Expectations, 24 Berkeley Tech. L.J. 1199 (2009). Murphy's paper was published as Erin Murphy, The Case Against the Case for Third-Party Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L.J. 1239 (2009).

May 25, 2010 | Permalink | Comments (0)

Monday, May 24, 2010

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to briefs and the opinion below:

  • Skinner v. Switzer: Whether a convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983, or whether such a claim may be asserted only in a petition for writ of habeas corpus.

May 24, 2010 | Permalink | Comments (0)

Cert dismissed as improvidently granted in contempt case

Robertson v. U.S. ex rel Watson is here. The issue presented was previously summarized here, from ScotusWiki:

Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.

May 24, 2010 | Permalink | Comments (0)

Summary reversal in capital case

The per curiam opinion in Jefferson v. Upton is here.

May 24, 2010 | Permalink | Comments (0)

Opinion requiring proof of possession of machinegun beyond reasonable doubt

United States v. O'Brien is here. Here is the syllabus:

Respondents O’Brien and Burgess each carried a firearm during an attempted robbery. Count three of their indictment charged them with using a firearm in furtherance of a crime of violence, which carries a mandatory minimum 5-year prison term. 18 U. S. C. §924(c)(1)(A)(i). Count four alleged use of a machinegun (here, a pis-tol that authorities believed operated as a fully automatic firearm) in furtherance of that crime, which carries a 30-year mandatory minimum term. §924(c)(1)(B)(ii). The Government moved to dismiss the fourth count on the basis that it could not establish the count beyond a reasonable doubt, but it maintained that §924(c)(1)(B)(ii)’s machinegun provision was a sentencing enhancement to be determined by the District Court upon a conviction on count three. The court dismissed count four and rejected the Government’s sentencing-enhancement position. Respondents then pleaded guilty to the remaining counts. The court sentenced O’Brien to a 102-month term and Burgess to an 84-month term for their §924(c) convictions. In affirming the District Court’s §924(c)(1)(B)(ii) ruling, the First Circuit looked primarily to Castillo v. United States, 530 U. S. 120, which held that the machinegun provision in an earlier version of §924(c) constituted an element of an offense, not a sentencing factor. The court found that Castillo was “close to binding,” absent clearer or more dramatic changes than those made by Congress’ 1998 amendment of §924(c) or a clearer legislative history.

Held: The fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing. Pp. 5–16.

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May 24, 2010 | Permalink | Comments (0)

Opinion on error in plain-error case

United States v. Marcus is here. Here is the syllabus:

Respondent Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000. Thus, he claimed, the indictment and evidence permitted at trial allowed a jury to convict him exclusively on the basis of preenactment conduct in violation of the Ex Post Facto Clause. He conceded that he had not raised this objection in the District Court, but argued that because the constitutional error was plain, his conviction must be set aside. The Second Circuit agreed and vacated the conviction. In doing so, the court held that, even in the case of a continuing offense, retrial is necessary if there is“any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.” The court noted that this was “true even under plain error review.”

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May 24, 2010 | Permalink | Comments (0)

Sunday, May 23, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 306 The Shadow of State Secrets
Laura Donohue,
Georgetown University Law Center,
Date posted to database: March 8, 2010 [2nd last week]
2 303 Disentangling Child Pornography from Child Sex Abuse
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010 [3rd last week]
3 214 When Is Tax Enforcement Publicized?
Joshua D. Blank, Daniel Z. Levin,
New York University School of Law, Rutgers Business School - Newark and New Brunswick,
Date posted to database: March 23, 2010 [4th last week]
4 205 Vigilante Justice: Prosecutor Misconduct in Capital Cases
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010 [6th last week]
5 194 Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law
John Mikhail,
Georgetown University - Law Center,
Date posted to database: March 23, 2010 [7th last week]
6 173 Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint
William W. Berry,
University of Mississippi School of Law,
Date posted to database: March 3, 2010 [8th last week]
7 169 Recognizing Constitutional Rights at Sentencing
F. Andrew Hessick, Carissa Byrne Hessick,
Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 3, 2010 [9th last week]
8 158 Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses
Jelani Jefferson Exum,
University of Kansas School of Law,
Date posted to database: March 12, 2010 [new to top ten]
9 158 Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency
Deborah Tuerkheimer,
DePaul University - College of Law,
Date posted to database: March 28, 2010 [10th last week]
10 155 The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell
John C. P. Goldberg, Benjamin C. Zipursky,
Harvard Law School, Fordham University - School of Law,
Date posted to database: March 24, 2010 [new to top ten]

May 23, 2010 | Permalink | Comments (0)

Saturday, May 22, 2010

Sundby on Capital Juries

Sundby scott Scott E. Sundby  (Washington and Lee University - School of Law) has posted War and Peace in the Jury Room: How Capital Juries Reach Unanimity (Hastings Law Journal, Vol. 62, 2010) on SSRN. Here is the abstract:

Using data from the Capital Jury Project, this article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The process proves to be a fascinating one. The article first examines the relationship between first ballot voting patterns and the ultimate sentence, and then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case-to-case in how they convert holdouts to the majority position (the striking differences are between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the closing argument in the death penalty case of Susan Smith (the mother who had done the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the article concludes by examining how a closing argument might address many of the pressures that affect holdouts.

May 22, 2010 | Permalink | Comments (0)