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

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Sunday, October 31, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 200 The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes
Maximo Langer,
University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: August 19, 2010
2 200 An e-SOS for Cyberspace
Duncan B. Hollis,
Temple University - James E. Beasley School of Law,
Date posted to database: September 3, 2010 [3rd last week]
3 183 Deportation is Different
Peter L. Markowitz,
Benjamin N. Cardozo School of Law,
Date posted to database: August 28, 2010 [2nd last week]
4 178 The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010 [5th last week]
5 174 Statistical Knowledge Deconstructed
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: September 7, 2010 [6th last week]
6 156 Jury 2.0
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [8th last week]
7 151 What Might Retributive Justice Be?
Dan Markel,
Florida State University College of Law,
Date posted to database: September 4, 2010
8 139 Rethinking Proportionality Under the Cruel and Unusual Punishments Clause
John F. Stinneford,
University of Florida Levin College of Law,
Date posted to database: August 20, 2010 [9th last week]
9 135 The Concept of Evil in American and German Criminal Punishment
Joshua Kleinfeld,
Goethe University Frankfurt - Cluster of Excellence Normative Orders,
Date posted to database: August 30, 2010 [new to top ten]
10 129 The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 19, 2010

October 31, 2010 | Permalink | Comments (0)

Saturday, October 30, 2010

Next week's criminal law/procedure oral arguments

There are no cases raising core issues, but a couple on the margins. Issue summaries are from ScotusBlog, which also links to briefs and opinions below:

Tuesday, Nov. 2

  • Sossamon v. Texas: Can an inmate sue a state for money damages for violations of the Religious Land Use and Institutionalized Persons Act?
  • Schwarzenegger v. Entm't Merchants: Does a state law restricting the sale of violent video games to minors violate the First Amendment right to free speech?

October 30, 2010 | Permalink | Comments (0)

Friday, October 29, 2010

Collins & Nash on Prosecuting Federal Crimes in State Courts

Collins_michael Michael G. Collins Nash jonathan remy and Jonathan Remy Nash  (University of Virginia School of Law and Emory University School of Law) has posted Prosecuting Federal Crimes in State Courts (Virginia Law Review, Vol. 97, 2011) on SSRN. Here is the abstract:

May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present, scholars have urged that state courts be allowed to entertain certain federal criminal prosecutions - prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.

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October 29, 2010 | Permalink | Comments (0)

Limiting immunity for prosecutors

Grits for Breakfast advocates the result after excerpting this article from the Houston Chronicle:

A day after prosecutors dismissed the capital murder charges that sent Anthony Graves to death row in 1994, they accused the district attorney who convicted him of prosecutorial misconduct.

“Charles Sebesta handled this case in a way that could best be described as a criminal justice system’s nightmare,” Kelly Siegler declared. “It’s a travesty, what happened in Anthony Graves’ trial.” Graves, now 45, was released from jail Wednesday after spending 18 years behind bars for a crime he did not commit, according to Bill Parham, the current DA for Washington and Burleson counties. Parham, Siegler and two investigators called a Thursday news conference at which they accused the former district attorney of hiding evidence and threatening witnesses.

October 29, 2010 | Permalink | Comments (0)

Thursday, October 28, 2010

"Poland prosecutors grant terror suspect victim status"

The story is at Jurist; the status "recogniz[es] the validity of his claims that he was mistreated by interrogators" at a secret CIA prison.

October 28, 2010 | Permalink | Comments (0)

Robinson on LWOP and Modern Theories of Punishment

Robinson paul Paul H. Robinson  (University of Pennsylvania Law School) has posted 'Life Without Parole' Under Modern Theories of Punishment on SSRN. Here is the abstract:

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals.

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October 28, 2010 | Permalink | Comments (0)

Wednesday, October 27, 2010

Capers on "The Wire"

Capers i bennett I. Bennett Capers  (Hofstra University - School of Law) has posted Crime, Legitimacy, Our Criminal Network, and the Wire (Ohio State Journal of Criminal Law, Vol. 8, 2011) on SSRN. Here is the abstract:

It perhaps comes as no surprise that, at a gathering of four criminal law professors over drinks and dinner, the subject would turn to the HBO series The Wire. The four of us - Susan Bandes, Jeff Fagan, David Alan Sklansky, and myself - were part of a larger group of about twenty or so criminal professors invited to participate in the University of Chicago’s Criminal Justice Roundtable, and after a full day of discussing each other’s scholarship, we were eager to discuss something else. So we raved about The Wire. Then we lamented the fact that, to our knowledge, there had never been a law conference devoted to The Wire, or even a symposium issue in a law journal. The series certainly raises enough criminal law and criminal procedure questions to warrant such a project. But even more importantly, The Wire does something else. I once argued that “law and order” shows can have a type of "de-shadowing" effect. There is the justice administered by the courts. And there is the justice that the courts imagine they are regulating. Law and order shows, especially the ones that give the illusion of being police procedurals, are uniquely positioned to critique this justice. Law and order shows, at their best, bring out of the shadows the justice that actually exists. No show does this better than The Wire.

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October 27, 2010 | Permalink | Comments (0)

Redding & Murrie on Judicial Decision Making About Forensic Mental Health Evidence

Redding_Richard Richard E. Redding (pictured) and Daniel C. Murrie  (Chapman University - School of Law and affiliation not provided to SSRN) have posted Judicial Decision Making About Forensic Mental Health Evidence (SPECIAL TOPICS IN FORENSIC PRACTICE, Chapter 26, p. 683, 2010) on SSRN. Here is the abstract:

Judges play a central role in decision making in the justice system. This chapter reviews the extant empirical research on judicial decision making in criminal, juvenile, and civil cases. We discuss judges’ decision making about forensic mental health evidence introduced in these cases, judicial receptivity to various kinds of evidence, and their understanding of clinical and scientific evidence as well as the ways they make rulings about such evidence. We focus on decision making at the trial court level, in those arenas that are most relevant to the forensic mental health practitioner (psychiatrist, psychologist, or social worker) who is called on to provide testimony to the courts.

October 27, 2010 | Permalink | Comments (0)

Tuesday, October 26, 2010

Schauer on Bentham on Presumed Offenses

Schauer_fred Frederick Schauer  (University of Virginia School of Law) has posted Bentham on Presumed Offenses on SSRN. Here is the abstract:

In a rarely-discussed passage in the Principles of the Penal Code, Jeremy Bentham discussed a category of offenses he labeled presumed, or evidentiary, offenses. The conduct penalized under such offenses is subject to punishment, Bentham observed, not because it is intrinsically wrong, but instead because engaging in such conduct probabilistically indicates that those who engage in such conduct have done something else that is in fact intrinsically wrong. Bentham offered as examples of presumed offenses the possession of shipwrecked property with altered markings, and the punishment as infanticide of the failure to report the birth of an infant subsequently found dead. Nowadays, evidentiary offenses include the punishment as a drug dealer of anyone found in possession of more than a specified quantity of narcotics, and punishing those who enter or leave the country with large amounts of unreported cash, on the assumption that they are likely to be engaged in money laundering or drug trafficking. Bentham was mildly skeptical of such offenses, but grudgingly accepted their value in light of deficiencies in procedure and in the judiciary. These days the skepticism is even greater, with courts and commentators in the United States, Canada, the United Kingdom and elsewhere believing that such offenses deny to a defendant the right to establish that he did not in fact engage in the conduct that the presumed offense probabilistically but not necessarily indicates. On closer analysis, however, such skepticism appears unjustified. Almost all offenses, and indeed almost all legal rules, are premised on a probabilistic relationship between the behavior the rule encompasses and the behavior that is the rule-maker’s real concern. Presumed offenses may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules.

October 26, 2010 | Permalink | Comments (0)

Michael Moore's Placing Blame (Kolber)

A couple of months ago, a used copy of Michael S. Moore's book Placing Blame cost $300, if you could even find one.  So I was pleased to see that Oxford University Press has begun reprinting Placing Blame, as well as his Act and Crime.  The paperback version of his new book Causation and Responsibility is now also available.  They are still $50-$60 each, even in paperback.  But if you refer to them often, this may be a good opportunity.

-AJK 

October 26, 2010 | Permalink | Comments (0)

"Deal Averts Trial in Disputed Guantánamo Case"

From The New York Times:

WASHINGTON — A former child soldier being held at the military prison at Guantánamo Bay, Cuba, pleaded guilty on Monday to terrorism-related charges, averting the awkward prospect that he would be the first person to stand trial before a military commission under the Obama administration.

. . .

By avoiding the need for a trial of Mr. Khadr, the deal represents a breakthrough for the Obama administration’s legal team, which had been dismayed that his case was to become the inaugural run of a new-look commissions system — undermining their efforts to rebrand the tribunals as a fair and just venue for prosecuting terrorism suspects.

. . .

The centerpiece of the charges was not a conventional terrorism offense — targeting civilians — but killing an enemy soldier in combat. Usually in war, battlefield killing is not prosecuted. But the United States contended that Mr. Khadr lacked battlefield immunity because he wore no uniform, among other requirements of the laws of war.

October 26, 2010 | Permalink | Comments (0)

Monday, October 25, 2010

Bibas on Regulating Plea Bargaining

Bibas stephanos Stephanos Bibas  (University of Pennsylvania Law School) has posted Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection on SSRN. Here is the abstract:

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

October 25, 2010 | Permalink | Comments (0)

Kreit on Federal Drug Laws and State Reform

Kreit alex Alex Kreit  (Thomas Jefferson School of Law) has posted Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms (Chapman Law Review, Vol. 13, p. 555, 2010) on SSRN. Here is the abstract:

Nearly forty years after President Richard Nixon first declared a "war on drugs" (calling drugs the "modern curse of the youth, just like the plagues and epidemics of former years") it seems the war may finally be coming to an end. In his first interview after being confirmed as the Director of the Office of National Drug Control Policy, Gil Kerlikowske told the Wall Street Journal that he thought it was time to retire the war rhetoric when it comes to addressing drug abuse. At the state level, the past year has seen proposals to legalize marijuana introduced in a handful of states with polls showing approximately forty-five percent of Americans nationwide in support of the idea. Importantly, these recent developments follow nearly a decade and a half of successful drug reform measures at the state level on issues ranging from medical marijuana, treatment instead of incarceration, asset forfeiture, and marijuana decriminalization. In short, the argument that we should end the war on drugs in favor of a new approach no longer resides in the world of the politically unthinkable, and has quickly become a subject of serious policy and political discussion.

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October 25, 2010 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logo

are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 195 The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes
Maximo Langer,
University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: August 19, 2010 [2nd last week]
2 182 Deportation is Different
Peter L. Markowitz,
Benjamin N. Cardozo School of Law,
Date posted to database: August 28, 2010 [4th last week]
3 182 An e-SOS for Cyberspace
Duncan B. Hollis,
Temple University - James E. Beasley School of Law,
Date posted to database: September 3, 2010 [5th last week]
4 173 Fourth Amendment Pragmatism
Daniel J. Solove,
George Washington University Law School,
Date posted to database: August 27, 2010 [6th last week]
5 168 The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010 [10th last week] 
6 159 Statistical Knowledge Deconstructed
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: September 7, 2010 [8th last week]
7 147 What Might Retributive Justice Be?
Dan Markel,
Florida State University College of Law,
Date posted to database: September 4, 2010 [new to top ten]
8 143 Jury 2.0
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [9th last week]
9 135 Rethinking Proportionality Under the Cruel and Unusual Punishments Clause
John F. Stinneford,
University of Florida Levin College of Law,
Date posted to database: August 20, 2010 [new to top ten]
10 128 The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 19, 2010 [new to top ten]

October 25, 2010 | Permalink | Comments (1)

Sunday, October 24, 2010

Lewis on Assisted Suicide and Prosecutors

Lewis penney Penney J. Lewis (King's College London) has posted Informal Legal Change on Assisted Suicide: The Policy for Prosecutors (Legal Studies (Online), October 13, 2010) on SSRN. Here is the abstract:

Following the House of Lords’ decision in Purdy, the Director of Public Prosecutions issued an interim policy for prosecutors setting out the factors to be considered when deciding whether a prosecution in an assisted suicide case is in the public interest. This paper considers the interim policy, the subsequent public consultation and the resulting final policy. Key aspects of the policy are examined, including the condition of the victim, the decision to commit suicide and the role of organised or professional assistance. The inclusion of assisted suicides which take place within England and Wales makes the informal legal change realised by the policy more significant than was originally anticipated.

October 24, 2010 | Permalink | Comments (1)

Saturday, October 23, 2010

Bronsteen, Buccafusco & Masur on Retribution and the Experience of Punishment

Bronsteen john John Bronsteen (pictured), Christopher J. Buccafusco and Jonathan S. Masur  (Loyola University Chicago School of Law , Chicago-Kent College of Law and University of Chicago - Law School) have posted Retribution and the Experience of Punishment (California Law Review, Forthcoming) on SSRN. Here is the abstract:

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount — as virtually everyone does — must therefore confront the implications of hedonic adaptation. Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed. Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments. Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.

October 23, 2010 | Permalink | Comments (0)

Friday, October 22, 2010

Blecker on LWOP

Blecker robert Robert Blecker (New York Law School) has posted Less than We Might: Meditations on Life in Prison Without Parole (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:

Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for "the worst of the worst." These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a "punishment worse than death."

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October 22, 2010 | Permalink | Comments (2)

Bellin on Crime Severity and the Fourth Amendment

Bellin jeffrey Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted
Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World on SSRN. Here is the abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

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October 22, 2010 | Permalink | Comments (3)

Thursday, October 21, 2010

Slobogin on Psychological Syndromes and Criminal Responsibility

Slobogin christopher Christopher Slobogin  (Vanderbilt Law School) has posted Psychological Syndromes and Criminal Responsibility on SSRN. Here is the abstract:

These two papers both focus on the intersection of the law of evidence with criminal responsibility doctrine, using as a springboard my book, Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness. The first piece, Psychological Syndromes and Criminal Responsibility, appears in the Annual Review of Law and Social Science. It analyzes the admissibility of defense-proffered testimony about phenomena such as battered woman syndrome, combat stress syndrome, and XYY syndrome as well the admissibility of prosecution-proffered evidence about phenomena such as rape trauma syndrome and abused child syndrome. It emphasizes the need to assess, in each instance, materiality (the logical relationship of the evidence to the precise doctrine at issue-insanity, lack of mens rea, etc.), probative value (reliability), helpfulness (the extent to which the evidence adds to the fact-finder knowledge), and prejudice (the extent to which the evidence distracts or confuses the fact-finder). Thus, the ultimate admissibility decision involves consideration of the scope of the criminal law, the scientific methodology associated with the syndrome, the counter-intuitiveness of the evidence, and the role and capacities of juries.

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October 21, 2010 | Permalink | Comments (0)

"Efforts to Prosecute Blackwater Are Collapsing"

From The New York Times:

WASHINGTON — Nearly four years after the federal government began a string of investigations and criminal prosecutions against Blackwater Worldwide personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, burdened by a legal obstacle of the government’s own making.

. . .

Interviews with lawyers involved in the cases, outside legal experts and a review of some records show that federal prosecutors have failed to overcome a series of legal hurdles, including the difficulties of obtaining evidence in war zones, of gaining proper jurisdiction for prosecutions in American civilian courts, and of overcoming immunity deals given to defendants by American officials on the scene.

October 21, 2010 | Permalink | Comments (0)