Friday, March 25, 2011
Robert C. Boruchowitz (Seattle University School of Law) has posted Diverting and Reclassifying Misdemeanors Could Save $1 Billion Per Year: Reducing the Need for and Cost of Appointed Counsel (American Constitution Society for Law and Policy, December 2010) on SSRN. Here is the abstract:
Reclassifying and diverting marijuana possession, driver's license suspension and other misdemeanors could save the indigent defense system as much as $1 billion per year, allowing overworked criminal defenders to devote time and resources to those charged with more serious crimes.
Barbara Glesner Fines (University of Missouri at Kansas City - School of Law) has posted Criminal Activities and Ethical Responsibilities (Family Advocate, Vol. 33, No. 4, Spring 2011) on SSRN. Here is the abstract:
This article addresses the question of a lawyers professional responsibility when a seemingly simple domestic relations case begins to turn into a major criminal catastrophe. Starting with ABA Model Rule 1.2(d) that an attorney “shall not counsel or assist in criminal or fraudulent conduct but may discuss the legal consequences of proposed conduct…”it analyzes the attorney’s responsibilities in the context of a hypothetical case involving hidden assets and misrepresented financial statements. Options to withdraw under Model Rule 1.16(b) are discussed along with the questions raised therefrom and the lawyer’s Model Rule 4.1(b) obligation not to knowingly fail to disclose material facts. From there the nightmare turns criminal as the hypothetical client is indicted raising issues ranging from emergency lawyering under Model Rule 1.1 to the lawyers own fees being subject to forfeiture. In conclusion it is nearly impossible to screen out every client who may bring criminal activities into family law representation. However, with careful research, clear communication, and documentation, a lawyer will be able to find a route out of the nightmare without being caught up in the criminal activity itself.
Thursday, March 24, 2011
Tracey Maclin and Julia Grace Mirabella (Boston University - School of Law and Boston University School of Law) have posted Framing the Fourth (Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011) on SSRN. Here is the abstract:
Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.
History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.
Montré Denise Carodine (University of Alabama - School of Law) has posted Keeping it Real: Reforming the ‘Untried Conviction’ Impeachment Rule(Maryland Law Review, Vol. 69, p. 501, 2010) on SSRN. Here is the abstract:
There is a growing call for a “New Legal Realism,” that, among other things, takes a “bottom-up” approach to studying the effects of rules of law on the people to whom they actually apply on a day-to-day basis. The New Legal Realism movement spans across various fields and disciplines related to law. The movement is particularly evident in the area of criminal law where there is an increasing effort to ensure reliability and accuracy in the system’s results. The recent move of some states to require racial impact statements for pending legislation as well as the advocacy and findings of the innocence movement exemplify this effort. Even more compelling are the recent lawsuits filed by public defenders in several states, citing their inability to represent their clients in a constitutionally effective manner and demanding to have their caseloads reduced until they can be adequately funded. This Article aids in the effort to improve our justice system’s reliability, taking a New Legal Realist approach to the area of evidence law as applied in the criminal setting.
Lucian E. Dervan (Southern Illinois University School of Law) has posted Re-Evaluating Corporate Criminal Liability: The DOJ’s Internal Moral Culpability Standard for Corporate Criminal Liability (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:
This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own volition, there are two fundamental flaws with allowing the status quo to suffice. First, while the government’s consideration of the Principles of Prosecution may be “mandatory,” these guidelines create no legal rights for corporate defendants. Second, the Principles of Prosecution contain elements for consideration that are outside the applicable scope of inquiry because they examine actions by the corporation that occur after the criminal conduct under scrutiny. As such, this article proposes a revised common law respondeat superior test that focuses the analysis of whether the corporation is morally culpable on a refined and appropriately limited group of pre-offense and offense specific factors.
Wednesday, March 23, 2011
William W. Berry III (University of Mississippi School of Law) has posted The European Prescription for Ending the Death Penalty on SSRN. Here is the abstract:
The United States of America remains the only Western democracy that continues to use capital punishment. Europeans, particularly in the academic community, continue to express outrage and disbelief at its persistence, especially given America’s twentieth century role as the world leader in challenging abuses of human rights.
This sociological question – why the United States retains the death penalty – has spawned a burgeoning academic literature. This literature has both deepened cultural understandings of the death penalty and raised questions concerning the degree to which (and in what ways) the United States is “exceptional” when compared to other Western democracies.
Tuesday, March 22, 2011
In Huber v. New Jersey Department of Environmental Protection, Justice Alito prepared a statement, joined in by the Chief Justice and Justices Scalia and Thomas, agreeing with denial of cert "because this case comes to us on review of a decision by a state intermediate appellate court" but stating, "This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement."
The story is from the San Diego Union Tribune:
Sacramento — The Assembly Public Safety Committee Tuesday approved legislation to crack open the now-secretive clemency process.
The unanimous vote delivered an early victory to prosecutors and families furious over former Gov. Arnold Schwarzenegger’s surprise order to more than halve the prison sentence imposed on the son of a political ally involved in a murder at San Diego State University.
. . .
Assembly Bill 648 would require that prisoners applying for early release or a pardon notify county prosecutors, who then would inform victims and their families who may want to protest. The notice would have to be given 30 days before a governor can act on the request.
Monday, March 21, 2011
Issue summaries are from ScotusBlog, which also links to papers and opinions below:
- Maples v. Allen: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
- Rehberg v. Paulk: Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
Sunday, March 20, 2011
|1||468||An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: January 26, 2011
|2||413||Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
University of Texas School of Law,
Date posted to database: February 4, 2011
|3||320||Plan Now or Pay Later: The Role of Compliance in Criminal Cases
Charlotte Simon, Ryan D. McConnell, Jay Martin,
University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 11, 2011 [4th last week]
|4||318||EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
Wouter P. J. Wils,
Date posted to database: February 12, 2011 [5th last week]
|5||268||Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause
Jordan M. Barry,
University of San Diego - School of Law,
Date posted to database: February 11, 2011 [6th last week]
|6||260||Emotion, Neuroscience, and Law: A Comment on Darwin and Greene
Georgetown University - Law Center,
Date posted to database: February 14, 2011 [7th last week]
|7||241||Sorting Guilty Minds
Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois,
Vanderbilt Law School, Second Judicial District (Denver), State of Colorado, Vanderbilt University - Law School & Department of Biological Sciences, Harvard University, Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: February 24, 2011 [new to top ten]
|8||241||'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler, Barry Sullivan,
University of Chicago Law School, Loyola University Chicago School of Law,
Date posted to database: January 27, 2011
|9||198||Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons
Francis X. Shen, Owen D. Jones,
Vanderbilt Law School, Vanderbilt University - Law School & Department of Biological Sciences,
Date posted to database: February 24, 2011 [new to top ten]
|10||175||Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: January 27, 2011 [new to top ten]