Saturday, January 1, 2011
Susan F. Mandiberg (Lewis & Clark Law School) has posted Reasonable Officers vs. Reasonable Lay Persons in the Supreme Court’s Miranda and Fourth Amendment Cases (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract;
This Article examines the role of the reasonable person as it applies to the Supreme Court’s investigative criminal procedure jurisprudence. The Article first explores the Court’s concept and use of the reasonable person in the context of Miranda and the Fourth Amendment. The Article then highlights how the Court’s view of the reasonable police officer compares to its treatment of the reasonable lay person. Specifically, the Article notes how, in many circumstances, the Court affords the reasonable police officer more room for imperfection in her perceptions, knowledge, emotions, and behaviors; comparatively, the reasonable lay person is far more frequently expected to check her identity and experiences at the door. This Article concludes that the Court’s differing applications of the reasonable person allow it to balance interests covertly. However, more forthright treatment of the interests at stake would be healthier for the criminal justice system.
Thursday, December 30, 2010
Some students understand a point about criminal law when they see the point played out in another setting with which they are familiar. Thank God for sports!
Two articles in today's papers illustrate the point: the coverage in The New York Times of the NFL's verdict in the Brett Favre workplace harassment case, and Tim Sullivan's column in the San Diego Union-Tribune headlined NCAA's delayed suspension of Ohio State players shows it's just business—as usual.
Both articles help make points about burdens of proof. The NFL's statement says that, "On the basis of the evidence currently available to him, [NFL] commissioner [Roger] Goodell could not conclude that Favre violated league policies relating to workplace conduct. The forensic analysis could not establish that Favre sent the objectionable photographs to [former Jets employee Jenn] Sterger."
This conclusion is hard to assess without some specification of the burden of persuasion that Goodell applied and the gaps in the evidence that Goodell perceived. One could not be absolutely sure that Favre sent explicit invitations to huddle up even if the forensic evidence tied the messages to Favre's phone number—after all, someone could have taken Favre's phone and sent the messages. Would that possibility constitute reasonable doubt? Sufficient doubt to preclude a finding of wrongdoing by a preponderance of the evidence? How is the conclusion affected by Goodell's conclusion that Favre had not been forthcoming during the investigation—a conclusion in which Goodell was sufficiently confident to impose a fine based on it?
Wednesday, December 29, 2010
Kenneth W. Simons (Boston University - School of Law) has posted Understanding the Topography of Moral and Criminal Law Norms (PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
The world is not flat. Neither is the topography of criminal wrongdoing and culpability, or of actus reus and mens rea. This complex terrain should not surprise or frighten us. It is a complexity built upon the varied, and in some instances incommensurable, moral norms that lie beneath criminal law doctrine.
This essay, a contribution to a forthcoming volume on the philosophical foundations of the criminal law, suggests the following conclusions. Criminal law norms can be more general or more particular. How particular should they be? The answer depends, in significant part, on the underlying landscape of the moral norms that criminal law instantiates, and on the political principles through which those moral norms are refracted. On three plausible accounts of moral justification — foundational pluralism, reliance on concrete moral intuitions, and variable relevance particularism — moral norms are relatively particularistic. At the same time, such accounts entail that the moral map contains localized areas of incommensurability. Finally, criminal law norms can be purely descriptive, or instead partially evaluative. But the difference that this distinction makes should not be overstated. A partially evaluative criterion does empower the fact-finder to play a more significant role in appraising the moral wrongfulness and the moral culpability of the defendant’s actions than does a purely descriptive criterion, but either type of criterion ultimately serves a normative function.
Monday, December 27, 2010
Robert Chesney (University of Texas School of Law) has posted Who May Be Held? Military Detention Through the Habeas Lens (Boston College Law Review, Vol. 52, No. 3, 2011) on SSRN. Here is the abstract:
We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today - i.e., counter-terrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court‘s 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government‘s detention authority unclear.
Sunday, December 26, 2010
|1||362||The Facade of FCPA Enforcement
Butler University College of Business,
Date posted to database: November 9, 2010
|2||315||Good Faith, New Law, and the Scope of the Exclusionary Rule
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: September 11, 2010
|3||299||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010 [4th last week]
|4||263||Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts
Gray Proctor, Nancy J. King,
Fourth Circuit Court of Appeals, Vanderbilt University - Law School,
Date posted to database: November 11, 2010 [5th last week]
|5||216||The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?
University of South Carolina - School of Law,
Date posted to database: October 11, 2010 [6th last week]
|6||199||Theorizing Mental Health Courts
E. Lea Johnston,
University of Florida - Fredric G. Levin College of Law,
Date posted to database: November 21, 2010 [7th last week]
|7||195||Talking About Prosecutors
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: September 24, 2010 [8th last week]
|8||194||Is the Rome Statute Binding on Individuals? (And Why We Should Care)
University of Nottingham School of Law,
Date posted to database: October 12, 2010 [9th last week]
|9||166||And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System
Susan A. Bandes,
DePaul University - College of Law,
Date posted to database: October 5, 2010 [10th last week]
|10||156||Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy
Barak Y. Orbach, Kathleen S. Callahan, Lisa M. Lindemenn,
University of Arizona, University of Arizona - James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: October 23, 2010 [new to top ten]