Saturday, May 21, 2011
Matthew Brent Leonhard has posted The Adam Walsh Act and Tribes: One Lawyer's Perspective (Sex Offender Law Report, Vol. 12, No. 3, 2011) on SSRN. Here is the abstract:
M. Brent Leonhard is the Deputy Attorney General for the Confederated Tribes of the Umatilla Indian Reservation, the first tribal jurisdiction (along with the State of Ohio) to be designated by the Department of Justice as having substantially implemented the Sex Offender Registration and Notification Act requirements. He is also a principle author of the Model Tribal Sex Offender Registration Code. In this brief article he expresses his personal opinions about the Adam Walsh Act and implementation issues tribes face, concluding that the Act needs to be amended.
There are three general litigation forums for persons aggrieved by constitutional violations - exclusionary rule litigation in a criminal case, habeas corpus challenges to the legality of one’s confinement, and civil litigation seeking damages or equitable relief. Over the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in each of these three fields, and the scope of such limitations has begun to compound exponentially in recent years. The stagnating impact on the development of Fourth Amendment law as a result of the increasingly emaciated constitutional-remedial regime is cause for concern and the subject of this Article.
Friday, May 20, 2011
Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
The traditional approaches to dangerous persons have been crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous. Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed to draw a principled distinction between the ordinary criminal and the mentally ill. This Article argues that rather than contorting the criminal or commitment models, there is a theoretical justification for substantial liberty deprivations of responsible, but dangerous, actors. Drawing on the concept of “liability to defensive force” from the self-defense literature, this Article argues that just as a culpable attacker’s own conduct grounds a defender’s right to response, a dangerous actor who begins a course of criminal conduct grounds the state’s right to stop him. This Article articulates what conduct is sufficient for “liability to preventive interference” as well as what the forms of preventive interference could be. In addition, this new form of liability is assessed in terms of constitutional implications, the civil-criminal divide, and practical considerations.
George A. Weiss has posted Prosecutorial Accountability after Connick v. Thompson on SSRN. Here is the abstract:
Both recent Supreme Court decisions such as Van de Kamp v. Goldstein and Connick v. Thompson, as well as newspaper incidents such as the prosecutorial misconduct of Michael Nifong and the prosecutor of the Ted Stevens case, have brought renewed attention to the issue of prosecutorial accountability. Though many have, in the past, lamented or tired to measure prosecutorial misconduct, this article argues that the theory of the Connick case (failure to train prosecutors liability under section 1983), while failing to in itself represent a new method of accountability, (failure to respond and discipline prosecutors), can be tweaked in favor of a theory both legally and politically viable.
Norman Braun and Roger Berger (University Munich - Department of Sociology and University of Leipzig - Department of Sociology) have posted Effects of Suppression Policy in a Market for Heroin: A Natural Quasi-Experiment on SSRN. Here is the abstract:
This paper focuses on the observable market effects of a more severe suppression of hard drug supply by the police. After surveying 624 regular heroin users in the Swiss cities of Bern and Zurich in a standardized way, the suppression policy had been intensified in Bern. To study the consequences of the policy change, the survey was repeated in both cities which resulted in another 419 standardized interviews. The results of this natural quasi experiment suggest that a more repressive practice of law enforcement agencies does not necessarily have the intended effects for central variables (e.g., price and quality of drugs, number of drug dealers) at the retail level of the illicit market.
Thursday, May 19, 2011
Michele Martinez Campbell has posted The Kids are Online: The Internet, the Commerce Clause and the Amended Federal Kidnapping Act (University of Pennsylvania Journal of Constitutional Law, Vol. 14, 2011) on SSRN. Here is the abstract:
Should kidnapping be a federal crime where use of the Internet or other telecommunications facilities is central to the crime’s execution, but the physical act itself takes place within the borders of a single state? Through the case study of the harrowing kidnapping and murder of 12-year old Brooke Bennett, this article examines a uniquely 21st century legal question about federalism, technology and criminal law.
Daniel J. Solove (George Washington University Law School) has posted Nothing to Hide: The False Tradeoff between Privacy and Security (Daniel J. Solove, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY, Chapter 1, Yale University Press, 2011) on SSRN. Here is the abstract:
"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.
Wednesday, May 18, 2011
Mario K. Castillo has posted Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky (Baylor Law Review, Forthcoming) on SSRN. Here is the abstract:
A non-citizen convicted of violating a Texas state criminal statute is subject to a variety of harsh immigration penalties including deportation from the United States. Multiple variables determine whether a state criminal offense will trigger immigration deportation proceedings. A parallel concern is the impact that a state criminal offense may have on one of the routine offenses prosecuted in federal courts: illegal re-entry in violation of 8 U.S.C. s. 1326. The Supreme Court has made it constitutionally impermissible for a criminal defense attorney to recommend the entry of a guilty plea in the absence of a basic, working knowledge of how that guilty plea will affect the non-citizen's immigration status.
Brian Jones has posted Keep Closed Containers Closed: Resolving the Circuit Split in Favor of Individual Privacy (Iowa Law Review, Vol. 97, November 2011) on SSRN. Here is the abstract:
The circuits are currently split on the issue of the scope of apparent-authority consent regarding the searches of closed containers. Specifically, the circuits disagree about what measures law-enforcement officers should be required to take to determine ownership of a closed container when, while conducting a search pursuant to consent, the circumstances are ambiguous as to whether the consenter actually owns the closed container. Because the Sixth Circuit’s approach provides the most Fourth Amendment protection and is most faithful to Supreme Court precedent, the Court should resolve the current split by adopting the Sixth Circuit’s approach.
Tuesday, May 17, 2011
Michael Potere has posted Who Will Watch the Watchers?: Citizens Recording Police Conduct (Northwestern University Law Review, Vol. 106, 2012) on SSRN. Here is the abstract:
Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit recording any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. § 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not "clearly established." This Note argues that the right to monitor police and report misconduct is a clearly established, if not fundamental element, of American policing. It also argues that arresting and prosecuting individuals that record police conduct is an unconstitutional prior restraint on speech.
The modern question relating to AI entities becomes: Does the growing intelligence of AI entities subject them to legal social control, as any other legal entity? This article attempts to work out a legal solution to the problem of the criminal liability of AI entities. At the outset, a definition of an AI entity will be presented. Based on that definition, this article will then propose and introduce three models of AI entity criminal liability: the perpetration-by-another liability model, the natural-probable-consequence liability model and the direct liability model. These three models might be applied separately, but in many situations, a coordinated combination of them (all or some of them) is required in order to complete the legal structure of criminal liability. Once we examine the possibility of legally imposing criminal liability on AI entities, then the question of punishment must be addressed. How can an AI entity serve a sentence of imprisonment? How can death penalty be imposed on an AI entity? How can probation, a pecuniary fine, etc. be imposed on an AI entity? Consequently, it is necessary to formulate viable forms of punishment in order to impose criminal liability practically on AI entities.
Horst Entorf (Goethe University Frankfurt) has posted Crime, Prosecutors, and the Certainty of Conviction on SSRN. Here is the abstract:
This paper tests predictions of a structural, augmented supply-of-offenders model regarding the relative effects of police, public prosecution and courts, respectively, on crime. Using detailed data on the different stages of the criminal prosecution process in Germany, empirical evidence suggests that public prosecutors and their influence on the probability of conviction play a major role in explaining the variation of crime rates, while the impact of the severity of punishment is small and insignificant.
Monday, May 16, 2011
This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand - even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer’s FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees "indisputable visual evidence" (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.
Ronald L. Steiner , Rebecca Bauer and Rohit Talwar (Chapman University School of Law , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted The Rise and Fall of the Miranda Warnings in Popular Culture (Cleveland State Law Review, Vol. 59, 2011) on SSRN. Here is the abstract:
The U.S. Supreme Court’s June 2000 decision in Dickerson v. United States was probably the first criminal procedure decision celebrated with an editorial in Broadcasting & Cable magazine. Noting that Chief Justice William Rehnquist opinion relied on the warnings’ well-established place in popular culture, the editorial acknowledged that, "[n]ext to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV." Professors Richard Leo and George Thomas have similarly observed "suspects are likely to have heard Miranda so many times on television that the Miranda warnings may have a familiar, numbing ring," and that "it is because of these shows and the mass media more generally - not the police, the legal system, or Supreme Court doctrine - that Miranda has become so much a part of our national culture." Critical to the Dickerson Court’s reaffirmation of Miranda was the fact of the public’s overwhelming awareness of Miranda and the fact that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Clearly, television dramas, and particularly police procedurals, get the credit for informing the public about the Miranda warnings. But, whether praising or skeptical toward portrayals of Miranda and its embedding in popular culture and the public consciousness, most study and commentary presumes that the consumers of serial police dramas on American television have had repeated exposure to the Miranda warnings. Dickerson was decided in part on the same premise.
The case is Kentucky v. King. Here is the syllabus:
Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Circuit Court denied respondent’s motion to suppress the evidence, holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. Respondent entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.
Sunday, May 15, 2011
|1||529||The Law Enforcement Surveillance Reporting Gap
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011
|2||426||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
|3||273||Why Courts Should Not Quantify Probable Cause
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 30, 2011
|4||239||FCPA Sanctions: Too Big to Debar?
Drury D. Stevenson, Nicholas J. Wagoner,
South Texas College of Law, South Texas College of Law,
Date posted to database: April 18, 2011
|5||202||Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea
Gabriel J. Chin,
University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2011
|6||194||Can Targeted Killing Work as a Neutral Principle?
New York University (NYU) - School of Law,
Date posted to database: March 18, 2011 [7th last week]
|7||190||From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance
Junichi P. Semitsu,
University of San Diego School of Law,
Date posted to database: March 10, 2011 [8th last week]
|8||181||Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?
Instituto de Investigaciones Filosoficas, UNAM,
Date posted to database: April 21, 2011 [10th last week]
|9||163||In Defense of Tax Privacy
Joshua D. Blank,
New York University School of Law,
Date posted to database: March 31, 2011 [new to top ten]
|10||160||Mental Torture: A Critique of Erasures in U.S. Law
David J. Luban, Henry Shue,
Georgetown University Law Center, University of Oxford,
Date posted to database: March 30, 2011 [new to top ten]