Saturday, May 8, 2010
John T. Parry (Lewis & Clark Law School) has posted Do the 'Torture Lawyers' Have Guilty Minds?: A Response to Jens Ohlin (Harvard International Law Journal, Vol. 51, pp. 23-34, 2010) on SSRN. Here is the abstract:
In this paper, written for the Harvard International Law Journal Online, I respond to Jens Ohlin's important article, "The Torture Lawyers," which provides a forceful argument for the accomplice liability of Office of Legal Counsel attorneys who wrote legal opinions that facilitated coercive interrogation, including torture. The thrust of my response is to question the version of accomplice liability that Ohlin uses and to suggest that federal government lawyers who wrote opinions on the legality of coercive interrogation may have a viable mens rea failure of proof defense to criminal charges that are based on being accomplices to torture. I also suggest that the availability of such a defense is a direct consequence of the U.S. Senate's decision to require specific intent for the crime of torture, and I propose amending federal law to lower the mens rea to knowledge or general intent.
Friday, May 7, 2010
Robert M. Bloom (pictured) and David H. Fentin (Boston College - Law School and Boston College) have posted ‘A More Majestic Conception:’ The Importance of Judicial Integrity in Preserving the Exclusionary Rule (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
In Mapp v. Ohio (1961), the Warren Court held that the so-called exclusionary rule was applicable to the states. Subsequent Supreme Courts have shown their disenchantment with the rule by seeking to curb its applicability. Most recently, the Court has characterized the exclusionary rule as a “massive remedy” to be applied only as a “last resort.” The Courts’ analytical framework for the last thirty-five years for cutting back the exclusionary rule was a balancing test which weighed the costs of suppressing reliable evidence with the benefits of deterring future police violations.
This balancing has been used most recently in two Supreme Court cases, Michigan v. Hudson (2006) and Herring v. United States (2009). In Herring, Justice Ginsberg’s dissent pointed out that there was a “more majestic conception” for the exclusionary rule due to its important role in preserving judicial integrity. Judicial integrity was the original reason for adopting the exclusionary rule in the Supreme Court case of Weeks v. United States (1914). The Court in Weeks saw the exclusionary rule as a remedy that would give meaning to the Fourth Amendment as well as prevent the Court from participating in an illegality by utilizing unlawfully obtained evidence. Through balancing, the Court has eviscerated the relevance of judicial integrity as the original justification for the exclusionary rule. This article will demonstrate that the exclusionary rule is the only viable remedy to give meaning to the Fourth Amendment, and argues that the exclusionary rule be returned to its previous prominence by reinstating judicial integrity as its primary purpose.
Dan Markel (Florida State University College of Law) has posted Punitive Damages and Private Ordering Fetishism: A Reply to Professors Krauss and Owen (University of Pennsylvania Law Review PENNumbra, Vol. 158, p. 283, 2010) on SSRN. Here is the abstract:
This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framework I developed in two articles last year. Those clarifications address issues including but not limited to how punitive damages law ought to address the wealth or financial condition of the defendant, the defendant’s status as a corporation, settlement dynamics and insurance. Before I answer Professor Krauss’s and Professor Owen’s challenges in those particular domains, however, I begin the essay with some more general observations about what role tort law could and should serve. My hope is that these initial remarks will provide some context for the nature and significance of the particular policy disputes we have with respect to punitive damages law.
Thursday, May 6, 2010
Hiroshi Motomura (University of California, Los Angeles, School of Law) has posted The Rights of Others: Legal Claims and Immigration Outside the Law (Duke Law Journal, Vol. 59, pp, 1723-1786, 2010) on SSRN. Here is the abstract:
This Article analyzes the rights of unauthorized migrants and elucidates how these noncitizens are incompletely but importantly integrated into the U.S. legal system. I examine four topics: (1) state and local laws targeting unauthorized migrants, (2) workplace rights and remedies, (3) suppression of evidence from an unlawful search or seizure, and (4) the right to effective counsel in immigration court.
These four inquiries show how unauthorized migrants – though unable to assert individual rights as directly as U.S. citizens in the same circumstances – can nevertheless assert rights indirectly and obliquely by making transsubstantive arguments that fall into five general patterns. The first is an institutional competence argument that the wrong decisionmaker acted. The second is an argument that an unauthorized migrant was wronged by a comparatively culpable person. The third is a citizen proxy argument that sustaining an unauthorized migrant’s claim will protect a U.S. citizen or lawful permanent resident. The fourth is that an unauthorized migrant may be unable to challenge the substance of a decision, yet may mount a successful procedural surrogate challenge to the way that decision was reached. The fifth is a phantom norm argument that, even if a government action withstands constitutional challenge, it violates a statute or regulation.
Deborah Davis and Richard A. Leo (University of Nevada, Reno and University of San Francisco - School of Law) have posted Selling Confession: Setting the Stage with the ‘Sympathetic Detective with a Time-Limited Offer’ (Journal of Contemporary Criminal Justice, Forthcoming) on SSRN. Here is the abstract:
The effectiveness of an interrogation tactic dubbed the “sympathetic detective with a time limited offer” was tested. Participants read two versions of an interrogation transcript, with and without the tactic. Those who read the sympathetic detective version believed the detective had greater authority to determine whether and with what to charge the suspect, more beneficent intentions toward the suspect, and viewed confession as more wise. However, regression analyses indicated that for innocent suspects, only perceptions of the strength of evidence against the suspect and the detective’s beneficence and authority predicted the perceived wisdom of false confession. Interrogation tactics were generally effective, as indicated by participant recommendations of confession (versus invoking Miranda, denial, or continuing to talk without admitting guilt) for both innocent (16.7%) and guilty (74.4%) suspects; and reasons offered for participants’ recommendations for confession versus other choices generally conformed to those reported by real-life confessors and interrogation scholars.
Stephen I. Vladeck (American University - Washington College of Law) has posted
Justice Jackson, Internment, and the Rule of Law after the Bush Administration (WHEN GOVERNMENTS BREAK THE LAW: THE RULE OF LAW AND THE PROSECUTION OF THE BUSH ADMINISTRATION, Austin Sarat, Nasser Hussain, eds., 2010) on SSRN. Here is the abstract:
The contemporary debate over whether senior Bush Administration officials should be investigated (and potentially prosecuted) for their role in the U.S. government’s torture of individuals detained as “enemy combatants” during the war on terrorism has been curiously indifferent to American history. Even the most modest perusal of that history reveals - perhaps surprisingly - little precedent for holding personally to account those senior government officials most responsible for our gravest civil liberties and human rights abuses. Perhaps the most prominent example comes from one of the darkest civil liberties chapters in American history, the exclusion from the West Coast and internment of over 120,000 Japanese nationals and U.S. citizens of Japanese descent during World War II, and the implicit but unequivocal legal sanction given to these measures by the Supreme Court in a trio of rulings culminating with Korematsu v. United States in December 1944.
Wednesday, May 5, 2010
Gail Mason and Julie Stubbs (University of Sydney and University of Sydney - Faculty of Law) have posted Feminist Approaches to Criminological Research (CRIMINOLOGICAL RESEARCH METHODS, D. Gadd, S. Karstedt, S. Messner, eds., Sage Publishing, Forthcoming) on SSRN. Here is the abstract:
In this chapter we argue that there is no orthodox methodology in feminist criminology. Rather, there are a series of methodological preferences that feminists adopt as a means of pursuing research questions inspired by: the insights of gender theory; the need for social change; the advances made by post-positivist epistemologies; the importance of experience in understanding crime and justice and; a commitment to breaking down the power relations inherent in research through processes of reflexivity. We provide an overview of approaches to research favoured by feminist criminologists. In order to highlight on-going debates and emerging themes in feminist methodology we focus on research that investigates violence against women. Four themes are featured: intersectionality; the victim/agent dichotomy; integrity and analysis and; the ‘textual turn’ in research. We flesh out these themes through two cases studies based on our own research on violence against Filipino women and homophobic violence against women.
Alex Kreit (Thomas Jefferson School of Law) has posted The Decriminalization Option: Should States Consider Moving From a Criminal to a Civil Drug Court Model? (University of Chicago Legal Forum, Forthcoming) on SSRN. Here is the abstract:
As states look to shave their corrections budgets in the midst of the recession, many are thinking about options to reform what is widely considered to be a bloated and ineffective approach to drug policy. While the effort to move beyond failed drug war policies and adopt smarter and more cost-effective measures is a positive step, the policy debate has focused almost exclusively on traditional and well-worn reform ideas. Many states and localities have, for example, begun to explore dramatically increasing the use of criminal drug courts, which available evidence indicates may be both cheaper and more effective than current policies. Meanwhile, the Obama Administration has pledged to significantly boost federal drug court grants as part of its effort to place a greater emphasis on treatment in our national drug control strategy. Even some of the more envelope-pushing reform proposals gaining traction in some states, like taxing and regulating marijuana, are new only in their political viability and not in their approach. Just because these ideas are not new, it does not mean they are not good, of course. In examining options for lowering costs and improving drug policy, however, states and localities may also benefit from thinking outside the box, and looking at approaches outside of the United States in order to generate new ideas.
Gabriel J. Chin (University of Arizona James E. Rogers College of Law) has posted The Jena Six and the History of Racially Compromised Justice in Louisiana (Harvard Civil Rights - Civil Liberties Law Review, Vol 44, p. 361, 2009) on SSRN. Here is the abstract:
This symposium contribution paper puts the story of the Jena Six, young African American men charged with attempted murder for a schoolyard fight, in the larger context of Louisiana legal history. It argues that Louisiana has historically discriminated against its African American citizens through vaguely drafted laws that could be applied with almost unlimited discretion. These included laws allowing registrars to deny voting registration to applicants who failed to satisfactorily interpret particular sections of the state or U.S. Constitution, and a vagrancy law, still on the books, allowing arrest of "Persons found in or near any structure, movable, vessel, or private grounds, without being able to account for their lawful presence therein." Given this history, unlimited prosecutorial discretion has predictable effects.
Tuesday, May 4, 2010
This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this be so?
Joseph Edward Kennedy (University of North Carolina) has posted The Story of Staples v. United States and the Innocent Machine Gun Owner: The Good, the Bad, and the Dangerous on SSRN. Here is the abstract:
Harold Staples claimed that he did not know that his rife was a machine gun. In Staples v. U.S., 511 U.S. 600 (1994), the Supreme Court held that the government had to prove such knowledge in order to convict him under the National Firearms Act. Staples’ story of a potentially innocent defendant prosecuted for things he did not know transformed how both federal and state courts interpreted criminal statutes with ambiguous mental state requirements. Staples established the proposition that courts should read knowledge requirements into statutes that criminalized conduct that would be otherwise innocent, particularly when serious punishment was at stake. At the heart of the Staples case, however, was a series of choices by the lawyers involved that shaped the case in ways not evident from the four corners of the Supreme Court’s opinions in the case. Ultimately the Staples decision was about character, and a fuller understanding of the Staples case helps us better understand the role that character plays in both the public welfare offense doctrine and in mens rea more generally: The lesson of the Staples case is that courts are most likely to raise mens rea requirements when statues clearly designed for the very bad may end up being successfully used against the possibly good.
Monday, May 3, 2010
The opinion in Renico v. Lett is here. Here is the syllabus:
From jury selection to jury instructions in a Michigan court, respondent Lett’s first trial for, inter alia, first-degree murder took less than nine hours. During approximately four hours of deliberations, the jury sent the trial court seven notes, including one asking what would happen if the jury could not agree. The judge called the jury and the attorneys into the courtroom and questioned the foreperson, who said that the jury was unable to reach a unanimous verdict. The judge then declared a mistrial, dismissed the jury, and scheduled a new trial. At Lett’s second trial, after deliberating for only 3 hours and 15 minutes, a new jury found him guilty of second-degree murder. On appeal, Lett argued that because the judge in his first trial had announced a mistrial without any manifest necessity to do so, the Double Jeopardy Clause barred the State from trying him a second time. Agreeing, the Michigan Court of Appeals reversed the conviction. The Michigan Supreme Court reversed. It concluded that, under United States v. Perez, 9 Wheat. 579, 580, a defendant may be retried following the discharge of a deadlocked jury so long as the trial court exercised its “sound discretion” in concluding that the jury was dead-locked and thus that there was a “manifest necessity” for a mistrial; and that, under Arizona v. Washington, 434 U. S. 497, 506–510, an appellate court must generally defer to a trial judge’s determination that a deadlock has been reached. It then found that the judge at Lett’s first trial had not abused her discretion in declaring the mistrial, observing that the jury had deliberated a sufficient amount of time following a short, noncomplex trial; that the jury had sent several notes, including one appearing to indicate heated discussions; and that the foreperson had stated that the jury could not reach a verdict. In Lett’s federal habeas petition, he contended that the Michigan Supreme Court’s rejection of his double jeopardy claim was “an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States,” 28
U. S. C. §2254(d)(1), and thus that he was not barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) from obtaining federal habeas relief. The District Court granted the writ, and the Sixth Circuit affirmed.
Penelope J. Pether (Villanova University School of Law) has posted What is Due to Others: Speaking and Signifying Subject(s) of Rape Law (Griffith Law Review, Vol. 18, p. 237, 2009) on SSRN. Here is the abstract:
Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in Girls Like You, like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, "real rape" victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including Girls Like You, recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, to explore some persistent legal problems in responding to the social harm of rape. It concludes that recent work on biopolitical models of rape law, applied to the New South Wales rape reform prompted in significant part by the Skaf and K rape cases, suggests that there is little hope of this law reform initiative reducing rape attrition. More disturbingly, via a somatechnological critique of the reform's production of "infralegal," it also proposes that its ends can be differently understood.
In recent years, the issue of coercive interrogations has generated a great deal of debate and commentary in both the popular media and academia. However, the issue of how the United States’ courts, in criminal cases, should treat statements that defendants have given abroad to foreign law enforcement bodies or security services, especially when those statements may have been the product of a coercive interrogation, has not received adequate scholarly attention. While not arising exclusively in the context of a war on terrorism, the issue of foreign confessions has taken on a renewed relevance in light of current events, and is compounded by the perceived extraordinary nature of terrorist crimes themselves. In particular, two recent federal cases, United States v. Abu Ali, in which the defendant was held and interrogated in Saudi Arabia for a year and a half on suspicion of involvement with an al-Qaeda cell, and United States v. Abu Marzook, in which one defendant had previously been arrested, interrogated, and convicted in Israel on charges of membership and support of Hamas, have addressed the question of when a confession obtained abroad by a foreign agency will be admitted into evidence. Both federal courts allowed the admission of the statements made abroad despite the defendants’ respective claims that their confessions were the product of coercive interrogation.
This Article aims to demonstrate that the legal mechanism in place for assessing whether a statement obtained abroad was improperly coerced, namely, the voluntariness test, is unwieldy and ultimately too subjective. It concludes by making several proposals intended to ensure that coerced confessions made abroad to foreign agents are not improperly admitted in federal criminal trials.
Sunday, May 2, 2010
|1||313||Brain Imaging for Legal Thinkers: A Guide for the Perplexed Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois, |
Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: March 4, 2010 [2nd last week]
|2||281||The Shadow of State Secrets |
Georgetown University Law Center,
Date posted to database: March 8, 2010 [3rd last week]
|3||210||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 [new to top ten]
|4||187||Twenty-Five Years of Social Science in Law |
John Monahan, Laurens Walker,
University of Virginia School of Law, University of Virginia School of Law,
Date posted to database: February 26, 2010 [6th last week]
|5||180||Taxing Punitive Damages |
Gregg D. Polsky, Dan Markel,
Florida State University - College of Law, Florida State University College of Law,
Date posted to database: June 19, 2009 [7th last week]
|6||167||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 [new to top ten]
|7||163||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]
|8||158||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 [10th last week]
|9||157||Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law |
Georgetown University - Law Center,
Date posted to database: March 23, 2010 [new to top ten]
|10||145||Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? |
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 21, 2010 [new to top ten]