January 1, 2011
Mandiberg on Reasonableness in Miranda and Fourth Amendment Cases
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.
December 30, 2010
If Lawyers Ran Sports—Oh, That's Right, They Do
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?
Sullivan makes a similar point about the NCAA's conclusion that extenuating circumstances precluded suspending five Ohio State players for their upcoming bowl game, instead deferring their punishment to next season, even though they might all elect to enter the NFL draft anyway and hence escape all punishment: "Mitigating their punishment on the premise that the players were inadequately educated about NCAA rules, and not simply contemptuous of them, requires another suspension — of disbelief." Sullivan's conclusion derives from a general understanding of how systematically NCAA schools educate their athletes about the rules they must follow. When I offered to take a friend's son—a baseball player—to lunch on my campus, he immediately knew that he couldn't accept the act of hospitality.
But the NCAA rules in question in the Ohio State case do illustrate how much more plausible it is to believe that a person can innocently violate a prophylactic rule than a rule targeting actual harm. At issue in the Ohio State case was the rule forbidding players to sell memorabilia that they own. Why? The theory is that they might sell it for more than market value, which would allow boosters to funnel payments to the athletes in the form of alleged "purchases." But if players actually sell memorabilia at market value, and if indeed they have not been educated about the rule, then one could imagine that the players might not think they were doing anything wrong. A similar dynamic is at work in when we criminalize conduct that seeks to avoid harm indirectly. For example, burglars know that their conduct is wrong; those who possess burglar's tools could be collectors.
In both the Favre and Ohio State matters, some have speculated that the fact finders had financial incentives to act as they did. I will leave to the reader to determine whether the criminal justice system should be indicted on the charge that money affects outcomes. But if the glove doesn't fit, you must acquit.
December 29, 2010
Simons on Moral and Criminal Law Norms
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.
Modern criminal law scholars and reformers have made enormous progress in simplifying and rationalizing criminal statutes. But we should not assume that if criminal law norms are complex and messy, those norms cannot be cogently justified. In the moral domain, Bernard Williams cautioned against wholesale rejection of “thick” ethical concepts. In the related domain of legal punishment, we should heed his caution.
December 27, 2010
Chesney on Military Detention and Habeas
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.
Part I opens with an abstract typology of criteria and constraints that might be used to define a detention standard at the individual level. Part II then provides further context with a thumbnail sketch of two overarching disagreements that greatly complicate the detention debate: we do not agree as to which bodies of law govern this question, nor do we agree as to what each particular body of law actually has to say, if anything, regarding individualized detention criteria even if that body is applicable. Part III follows with a survey of about two dozen habeas decisions between 2002 and 2010 in which courts grapple with the individualized-scope issue, using the typology from Part I as a device to facilitate comparison of the decisions.
With respect to affirmative predicates for detention, the survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context. The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention. With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative). On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled.
Part IV considers the ramifications of this descriptive account. I open by arguing that the lingering uncertainty matters a great deal both in terms of the remaining Guantanamo cases and in terms of other military activities that take place in the shadow of the habeas caselaw. I then consider the arguments for and against legislation to reduce the uncertainty, finding that the case for legislation is difficult but ultimately persuasive in the abstract (note that this paper is not a pitch for adopting some particular legislative proposal). Finally, I explain that the detention litigation illustrates three larger phenomena: (i) the dynamic relationship between law and strategic context; (ii) the increasing significance of domestic courts for purposes of developing international humanitarian law, and (iii) the increasing extent to which domestic law challenges both international humanitarian law and international human rights law for primacy when it comes to the legal regulation of national security-related activities.
December 26, 2010
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