April 30, 2011
Don Dripps, on the occasion of Yale Kamisar's (second) retirement
We at the University of San Diego have been privileged to count Yale Kamisar as our colleague since 2002. He has taught for us every spring semester since. However, the lure of travel has led Yale to retire fully from teaching; he taught his last class last week. We honored him at a reception on campus Thursday, and our mutual colleague, Don Dripps, delivered a stirring tribute from the vantage of former student, professor of Criminal Procedure, and faculty colleague. Download Dripps on kamisar
We gave Yale a standing ovation as a way of coercing him to say a few words--our version of poetic justice. We will miss having Yale around, but we will always have fond memories of his time with us. And we will do what we can to get him back from time to time.
April 29, 2011
Kaplan on HIV-Exposure Laws
This article challenges the current legislative and scholarly approaches to HIV-exposure criminalization and proposes an alternative framework to address their flaws. Twenty-four states criminalize consensual sexual activities by people with HIV. I argue that current statutes and the scholarship that supports them fail to address adequately the role that risk, mental state, and consent should play in criminal law. They punish conduct that ordinarily would not rise to the level of criminal culpability and stigmatize individuals living with HIV. I propose limiting criminalization to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a culpable mental state. This approach requires juries to consider all evidence relevant to the risk of transmission and the victims’ understanding of that risk, a modest requirement that would nonetheless rectify the substantial flaws of current statutes and invert outcomes in numerous prosecutions.
The article transforms the HIV-criminalization debate by demonstrating that HIV-exposure statutes should focus on very limited and rare conduct. It also serves as an object lesson for reforming traditional criminal law’s approach to activities that put others at risk of harm, no matter the context.
Badeaux on DNA preservation in Texas
Danielle Badeaux has posted The DNA's Over There... Right Next to the Jelly: The Problems with the Preservation of Evidence in Texas (Texas Tech Administrative Law Journal, Vol. 11, p. 333, 2010) on SSRN. Here is the abstract:
In “The DNA’s Over There… Right Next to the Jelly: The Problems with the Preservation of Evidence in Texas,” author Danielle Badeaux discusses the embarrassments that result from Texas’s preservation and storage methods for DNA materials. First the author argues that the ambiguities in the statutes governing DNA evidence lead to confusion. The article next describes the loss of evidence due to misplacement, mishandling, and degradation of samples that were preserved incorrectly. Additionally, the author examines how Texas’s guidelines for evidence retention make it almost impossible to appeal for testing of the evidence if more than a decade has passed.
Badeaux proposes several changes to make the system more efficient. First, the author argues that other states have statutes in place that make the guidelines much more specific and remove much of the ambiguity and confusion present in the Texas statutes. Next, she states that Texas could also revise the statutes that are currently in place to remove confusion. Finally, Badeaux suggests that Texas could leave preservation efforts up to each individual county and require that they have preservation methods in place.
Chin on Padilla and Collateral Consequences of Guilty Pleas
Gabriel J. Chin (University of Arizona James E. Rogers College of Law) has posted Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea
(Howard Law Journal, Vol. 54, No. 3, p. 101, 2011) on SSRN. Here is the abstract:
This essay, part of the 2010 Wiley A. Branton Symposium at Howard Law School, addresses some of the practicalities of making the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) an operational reality. Padilla held that defense counsel have an ethical obligation to advise their clients of the possibility of deportation when pleading guilty. The inescapable logic of Padilla is that counsel's duty will extend to warning about other serious collateral consequences as well. Putting more demands on overburdened defense counsel raises a number of issues. First, how can public defenders, who are already challenged in providing basic representation add more to their duties? Second, how can defense counsel, who are not specialists in collateral consequences, be aware of the hundreds or thousands of potential collateral consequences which could apply in any given case? This essay proposes that the standards of competent representation should continue to develop even if they are not always met because of governmental funding choices. In addition, introducing collateral consequences into plea negotiation will sometimes facilitate a better disposition of the criminal case. Although Padilla means more work for defense attorneys, it also promises better outcomes for clients. The essay also makes some suggestions about ways of identifying the most common and most serious collateral consequences in each state, to simplify the process of advising clients.
April 28, 2011
Starger on Due Process Dissent
Colin P. Starger (University of Baltimore School of Law) has posted Exile on Main Street: Competing Traditions and Due Process Dissent (Marquette Law Review, Vol. 95, 2012) on SSRN. Here is the abstract:
Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in caselaw. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in empirical approach, this Article proposes an alternative method that permits analysis of contextual and inter-textual aspects of doctrinal development. This method proceeds by dividing doctrinal territories into rival schools of thought and then constructing opinion genealogies for each competing school. Connections between opinions – majority, concurring, and dissenting – are justified using both citation and more nuanced hermeneutic analyses. Through systematic tracking of debate between rival schools over generations, the impact of dissents is revealed in the turns taken during unfolding doctrinal argument.
Using this method, this Article examines two key Due Process territories – economic liberty and “incorporation” – and demonstrates how uncited Supreme Court dissents dramatically changed the course of these doctrines. First, it is demonstrated that uncited dissents by Joseph Bradley in the Slaughter-House Cases and by Oliver Wendell Holmes in Lochner v. New York directly contributed to the well-known rise and fall of economic liberty. Second, the momentous battle over incorporation is proven to have dramatically turned under the influence of uncited dissents by John Marshall Harlan in Hurtado v. California and Hugo Black in Adamson v. California. The incorporation story features analysis of John Paul Stevens’ final passionate dissent after 35 years on the Court, which came in last Term’s blockbuster Second Amendment incorporation case, McDonald v. City of Chicago. Apparent contradictions in this critical opinion are resolved by connecting Stevens to the tradition of uncited great dissents that forever changed substantive due process doctrine.
To illustrate the results of its method, this Article introduces an innovative series of “opinion maps” that graphically represent the competing due process genealogies in economic liberty and incorporation doctrine. Rendered using custom software designed by the author, the opinion maps present information-rich, epic-scale historical portraits of these key constitutional doctrines. The maps have practical and theoretical use. Practically, they offer accessible guides to the place of and relationships between major opinions in two crucial substantive due process debates. Theoretically, the figures rendered collectively suggest deep metaphors for the interpretative space we call doctrine and for the vital role dissents play in drawing lines of authority that define the shape and boundaries of this interpretative space.
Kim on Rape as Slavery
In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real. At this very moment, there are approximately 20 million women in the United States who have been raped during their lifetime, and each year, over one million women are raped in the United States. The numbers are staggering, but not unfamiliar. Despite the devastating and continued prevalence of rape in the United States, estimated state rape conviction rates are as low as 2 to 9 percent of total instances of rape. In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists questions the commitment and priority of law enforcement, law makers, courts, and the public in treating rape as seriously before the law as it is treated in name. If rape is serious, why don’t we take rape prosecution seriously?
This paper identifies and challenges the incongruity between the purportedly-accepted gravity of rape crimes and the pervasive continuance of rape impunity in the United States. Part I begins by presenting the problem of local rape tolerance, as evidenced by both the inadequate investigation and prosecution of rape crimes, and by the grading of rape that define legitimate rape as rape-and or rape plus and marginalizes “mere” rape or rape-alone as rape-lite. Part II discusses federal rape tolerance by examining the Supreme Court’s minimization of violence against women as a local problem and the Court’s simultaneous and incongruent maximization of congressional authority for the longstanding federal crimes of extortion and mail fraud. Part III compares rape to race-based crimes, examining both congressional authority to criminalize race-based violence under the Thirteenth Amendment’s prohibition against slavery and congressional paralysis in criminalizing gender-based violence. Part III argues that rape falls within the Thirteenth Amendment’s protections: rape is slavery. Part IV discusses the necessity, practical advantages, and challenges of federal rape law.
While it is not possible to predict the prospective success of federally criminalizing rape, this paper concludes by finding that the benefits of enabling national action against rape outweigh the unlikely harms of such action. In order to construct and prosecute rape in a manner consistent with its purported gravity - in order for federal and local actors to take rape seriously - rape must be afforded the protections of the Thirteenth Amendment and federal action is necessary. Accordingly, continued federal inaction in working with states and in compelling rape non-impunity stems from an unwillingness rather than an inability to intervene, and will signify continued federal rape tolerance.
April 27, 2011
Reid on the Medicalization of Pleasure
Susan Reid has posted Sex, Drugs, and American Jurisprudence: The Medicalization of Pleasure on SSRN. Here is the abstract:
This paper explores the role of medical arguments in cases where courts have overturned statutes that burden pleasure-seeking behavior, such as non-procreative sexual activity or the use of endorphin-inducing substances. It speculates the characterization of the individual interests at stake as medical rather than pleasure-related, and the framing of state interests as moral rather than medical, facilitates the judicial decriminalization of pleasure-seeking behavior. This approach to framing individual and state interests is explored and developed in the context of statutes that burden non-procreative sexual intimacy, including key cases on contraception, abortion, and “obscene devices.” After developing the paradigm of medicalization through the lens of the sexual intimacy cases, the paper investigates the conspicuous absence of any discussion of pleasure in these cases and in legal discourse more generally. Finally, the paper explores the continuing criminalization of endorphin-inducing substances and argues that the use of medicalization in the sexual intimacy cases may provide an effective model for challenging certain statutes that burden substance use.
Argument transcript in case on time for assessing whether prior drug offense is "serious"
The case is McNeill v. United States.
April 26, 2011
Huigens on Implicitly Normative Punishment Theory
This draft is Chapter Two of a book entitled, "A Theory of Just Punishment." One initial premise of the book is that current punishment theory is misguided in two respects. First, ordinary punishment theory tries to provide moral justifications for legal punishment, instead of trying to describe just norms for punishment. This is to work in the wrong direction. A moral justification for punishment will not provide us with a description of norms for just punishment. It will not tell us how to formulate self defense, why provocation manslaughter is a partial defense instead of an offense, or whether negligence is a kind of criminal fault. But to describe just norms for punishment does tell us how legal punishment is morally justified. Second, ordinary punishment theory tries to provide a moral justification by reference to punishment's functions – principally, deterrence and retribution. But legal punishment manifestly serves a large number of functions simultaneously. The functionalist approach makes it necessary to order these many functions, bringing them into conflict, placing one over the other, or denying one or another of them. This war is both pointless and incoherent. Therefore, "A Theory of Just Punishment" takes a fresh start on the problem, attempting to describe just punishment norms. Explaining this fresh start requires a bit of metatheory at the beginning. Chapter Two's contribution to this task is to explain several kinds of normative punishment theory, focusing on implicitly normative punishment theory.
Strandburg on Technosocial Change and the Fourth Amendment
Katherine J. Strandburg (New York University School of Law) has posted Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change (Maryland Law Review, Vol. 70, p. 101, 2011) on SSRN. Here is the abstract:
The rapidly changing social role of the Internet and other digital media requires a rethinking of the scope of Fourth Amendment protection. The social role of the Internet and related technologies goes far beyond serving as a new means of communication, analogous to the telephone and postal mail. To preserve Fourth Amendment protections in the face of changing technology, courts must focus not only on the potential for increasing intrusion into time-honored private realms, as the Supreme Court did in Kyllo, but also on the privacy implications of technology-mediated social change that were recognized in Katz.First, courts should recognize that an aggressive form of third party doctrine suggesting that any exposure of private data to an intermediary destroys reasonable expectations of privacy is inconsistent with Fourth Amendment doctrine relating to shared social spaces. Second, courts should adopt an approach of technosocial continuity, acknowledging both the increasing intrusiveness that technology makes possible and the intertwined and changing social structure of the physical and digital worlds. Viewed from a technosocial perspective, much cloud computing is an extension of the home or office. Similarly, social networking platforms sometimes serve as technosocial extensions of the home, connecting people with their friends, families, and intimates and aggregating the varied pieces of private life in ways that mirror the home's valued social role. To maintain technosocial continuity with Fourth Amendment protection of traditional bastions of privacy, such as the home, courts should zoom out from a focus on translating the Fourth Amendment’s protections to cyberspace and see digitally-mediated social behavior for what it frequently is - an inextricable part of social and private life. To maintain a space for private life away from government scrutiny, the Fourth Amendment’s protections must reflect the technosocial reality of citizens' private lives.
Sheley on Victim Impact Statements and the Cultural Project of Punishment
Erin Leigh Sheley (Fellow, Georgetown University Law Center) has posted Reverberations of the Victim's 'Voice': Victim Impact Statements and the Cultural Project of Punishment (Indiana Law Journal, Vol. 87, 2012) on SSRN. Here is the abstract:
This article will argue that the current debate on the victim’s participation in the criminal sentencing process ignores how the complexity of a victim narrative effectively conveys the social experience of harm, without which the criminal justice system loses its legitimacy as a penal authority. In other words, we cannot only consider "the victim," "the defendant," and "the state" as three separate entities vying for narrative control over accounts of harm in determining punishment. Rather, the stories of the victims and defendants already circulate through society outside of the courtroom and the function of "the state" in the trial context is to vindicate the interests of this society. Notions about criminal "harm" enter the culture through the experiences of individuals, as well as through political rhetoric and media representations, and, once there, shape social norms about the assignment of blame. Therefore, if the sentencing process cannot accommodate the stories of actual harm to individual victims it runs the risk of either coming to be viewed as illegitimate to a society guided by these norms or allowing free reign for generic representations of criminal harm produced by political and media actors to take the place of individuated victim accounts in the mind of a fact-finder.
April 25, 2011
Allen on Rationality and the Taming of Complexity
The article is one of this year’s Meador Lectures, which were dedicated to Rationality. Its central thesis is that a central but somewhat unnoticed feature of both rationality and the legal system is the struggle to tame complexity. Indeed, the struggle to tame complexity may be one of the most general explanatory features of the legal system. As I will attempt to show, viewing the legal system through such a lens is clarifying in a large number of way; the taming of complexity is a unifying perspective that uncovers similarities in otherwise disparate phenomena. Viewed from such a perspective, for example, the law’s difficulty with both questions of law and questions of fact come into better focus. The taming of complexity explains more aspects of the trial of disputes specifically, and dispute resolution more generally, than any other hypothesis, as it also enlightens disparate practical and philosophical debates about the meaning of law, the significance of discretion, and even sheds light on perennial issues such as the distinction between rules and standards or rules and principles.
Vidmar & Schuller on the Canadian Criminal Jury
Neil Vidmar (pictured) and Regina Schuller (Duke University - School of Law and affiliation not provided to SSRN) have posted The Canadian Criminal Jury (Chicago-Kent Law Review, Forthcoming) on SSRN. Here is the abstract:
The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process in which members of the jury pool itself, selected as “triers,” determine which prospective jurors are impartial. Another totally unique aspect of the Canadian system is that special rules apply to juries in Canada’s arctic regions. In addition to the official English and French languages, unilingual aboriginal persons who speak one of two Inuit dialects or one of seven Dene (Indian) dialects are eligible to serve on the jury. The purpose of this language provision is to provide for cultural perspective in jury verdicts and to increase community acceptance of Canadian law.
April 24, 2011
Top-Ten Recent SSRN Downloads
|1||442||The Law Enforcement Surveillance Reporting Gap
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011 [new to top ten]
|2||357||Fetal Pain, Abortion, Viability and the Constitution
I. Glenn Cohen, Sadath Sayeed,
Harvard Law School, Harvard University - Harvard Medical School,
Date posted to database: April 11, 2011 [new to top ten]
|3||333||Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in 'Due Process of Law' - 'Fourth Amendment Reasonableness' is Only a Modern, Destructive, Judicial Myth
Thomas Y. Davies,
University of Tennessee College of Law,
Date posted to database: February 25, 2011 [2nd last week]
|4||294||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 [5th last week]
|5||271||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 [6th last week]
|6||251||Why Courts Should Not Quantify Probable Cause
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 30, 2011 [8th last week]
|7||184||Chivalry is Not Dead: Murder, Gender, and the Death Penalty
Steven F. Shatz, Naomi R. Shatz,
University of San Francisco - School of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 23, 2011 [10th last week]
|8||182||The Authority of Law
University of Michigan Law School,
Date posted to database: March 8, 2011 [new to top ten]
Jiong Gong, R. Preston McAfee, Michael A. Williams,
University of International Business and Economics, Yahoo! Research Labs, Competition Economics LLC,
Date posted to database: February 19, 2011 [new to top ten]
|10||174||Can Targeted Killing Work as a Neutral Principle?
New York University (NYU) - School of Law,
Date posted to database: March 18, 2011 [new to top ten]