« May 15, 2011 - May 21, 2011 | Main | May 29, 2011 - June 4, 2011 »
May 28, 2011
Patriot Act updates
From Friday's New York Times:
May 28, 2011 | Permalink | Comments (0)
McKenna on Preconviction Indigent Defense Reform
William H. W. McKenna has posted Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan on SSRN. Here is the abstract:
Now forty-nine years after the U.S. Supreme Court’s decision in Gideon v. Wainwright (1963), many states continue to fail to effect its guarantee. Recently though, some have challenged states’ systemic neglect of indigent defense through pre-conviction class action suits seeking prospective relief, like the plaintiff classes in Hurrell-Harring v. State (N.Y. 2010) and Duncan v. State (Mich. 2010). This Comment argues pre-conviction systemic Sixth Amendment claims like those are not properly treated as ineffective assistance of counsel claims subject to Strickland, which would categorically bar them, but rather they present the (justiciable) question of whether a state has enabled Gideon's guarantee at all. When states systemically neglect indigent defense, they prevent public defenders from fulfilling their ethical obligations in individual cases, thereby constructively depriving indigent defendants’ Sixth Amendment right to counsel.
May 28, 2011 | Permalink | Comments (2)
May 27, 2011
Murphy on Capers on rape
Erin Murphy (Berkeley Law School) has posted this comment on Jotwell about I. Bennett Capers's article, "Real Rape Too," forthcoming on California Law Review. In part:
Whether in the domestic, professional, or sexual sphere, redefining the feminine is itself not enough; we must also redefine the masculine. With regard to the law of rape, then, Capers’s Real Rape Too is exceedingly welcome, if long overdue.
May 27, 2011 | Permalink | Comments (0)
3d annual Shadow CrimProf Gathering at the Law and Society meeting
At Dan Markel's request, we reprint below a message he recently sent to the CrimProf listserv about next week's program in San Francisco. It looks like a great group of papers:
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Criminal Justice 08: Adjudication and Trial 3210 |
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Schedule Information: |
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Scheduled Time: Sat, Jun 4 - 10:15am - 12:00pm Building/Room: St. Francis or Nikko, TBA 10 |
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Session Participants: |
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The panelists will discuss works in progress primarily focusing on privacy and security of lay participants in the criminal justice system, in particular jurors and confidential informants. The panel will also consider the role of defense counsel in the civil law system. The presenters and papers are as follows: |
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May 27, 2011 | Permalink | Comments (0)
May 26, 2011
Opinion dismissing school interview/warrant case as moot
The case is Camreta v. Greene.
May 26, 2011 | Permalink | Comments (0)
Opinion in witness tampering case
The case is Fowler v. United States. Syllabus to follow.
May 26, 2011 | Permalink | Comments (0)
Opinion in Speedy Trial Act case
The case is United States v. Tinklenberg. Syllabus to follow.
May 26, 2011 | Permalink | Comments (0)
May 25, 2011
Roach on the Outcome Gap Between Different Types of Counsel for Indigents
Michael Roach has posted Explaining the Outcome Gap between Different Types of Indigent Defense Counsel: Adverse Selection and Moral Hazard Effects on SSRN. Here is the abstract:
County governments typically provide legal defense services for the indigent through one of two methods: public defenders and assigned counsel. I measure the differences in defendant outcomes between these two types of counsel and examine the extent to which adverse selection and moral hazard contribute to these differences. I find that, across a variety of outcome variables, assigned counsel generate significantly less favorable outcomes for defendants than do public defenders. Using variation in the fee structures through which assigned counsel are paid, I find evidence suggesting that moral hazard can affect the speed with which a case is resolved. I use variation in local attorney wages to measure the degree to which the decision to self-select onto an assigned counsel roster is sensitive to an attorney’s outside option. My results indicate that this selection effect is quite significant and robust to specification, strongly suggesting that adverse selection is of primary importance in explaining the outcome gap between public defenders and assigned counsel.
May 25, 2011 | Permalink | Comments (0)
Loughner ruled incompetent to stand trial
The story is in the New York Times:
TUCSON, Ariz. — A federal judge ruled Wednesday that Jared L. Loughner was not mentally competent to stand trial on charges that he opened fire at a constituent event for an Arizona congresswoman in January, killing six and injuring 13.
. . .
The ruling came after two experts who examined Mr. Loughner at a federal psychiatric facility in Missouri had determined that he was mentally incompetent and that he appeared to suffer from schizophrenia and experienced delusions and irrational thoughts.
May 25, 2011 | Permalink | Comments (0)
Porter on Binding Plea Agreements Post-Booker
Wes R. Porter (Golden Gate University School of Law) has posted The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker (William Mitchell Law Review, Vol. 37, p. 469, 2010) on SSRN. Here is the abstract:
Binding plea agreements once served an important function of counterbalancing the vast judicial discretion at sentencing. The federal judiciary enjoyed wide discretion in imposing a sentence; the government and defendant’s freedom to contract for an appropriate sentence mirrored that discretion. The United States Sentencing Guidelines (the Guidelines) effectively replaced, and marginalized the role of, binding plea agreements. Binding plea agreements became a stigmatized novelty in federal criminal practice. The valuable tool has remained underutilized and unavailable to criminal defendants for more than 20 years.
Aside from its legislative goals of uniformity and proportionality, the Guidelines promoted predictability and informed decision-making for the defendant. In its 2005 decision in United States v. Booker, the Supreme Court relegated the Guidelines to a mere sentencing “consideration” and introduced a new process in federal sentencing. The sea change that resulted from Booker seemingly improved federal sentencing for the judiciary, the prosecution and the defense. After several years of “advisory Guidelines,” courts have exercised their discretion decidedly in favor of the criminal defendant imposing lower sentences than were called for when the Guidelines were mandatory. The fall of the Guidelines may benefit defendants statistically, yet the new process will never be as predictable and informative.
This Article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision-making for the defendant. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker. After years of isolated and inconsistent use, binding plea agreements could again restore some predictability and informed decision-making for the defendant. This Article proposes that Congress should enact a new standard for judicial acceptance of binding plea agreements post-Booker, as well as policy and perception changes. While binding plea agreements are not appropriate in most cases, the parties must be permitted to enter into agreements for a specific sentence that is “reasonable” and consistent with Congress’ original intent underlying Rule 11(c)(1)(C).
May 25, 2011 | Permalink | Comments (0)
May 24, 2011
Wechsler on Criminal Enforcement of IP Law
Andrea Wechsler (Max Planck Institute for Intellectual Property and Competition Law) has posted Criminal Enforcement of Intellectual Property Law – An Economic Approach (CRIMINAL ENFORCEMENT OF INTELLECTUAL PROPERTY: A BLESSING OR A CURSE?, Geiger, Christophe, ed., Edward Elgar, 2011) on SSRN. Here is the abstract:
With piracy and counterfeiting constituting an ever-growing international phenomenon that threatens the world social and economic order, criminal sanctions in intellectual property law are fervently debated as to their aptitude to address particular infringement situations. A “beacon of hope” for guidance in this highly contentious law and policy area is the economic approach to law. However, the area of criminal enforcement of IP law is still a closed book and has carelessly been neglected by economic research.
In the light of this scarcity of economic research, this paper, first, discusses the state of economic research on criminal enforcement of IP law. It reviews the economic analysis of criminal sanctions in research, law, policy, and enforcement before suggesting relevant issues and questions to be addressed by economic research. This paper provides, second, for an introduction to the learnings from the economics of crime and punishment and discusses their applicability to IP law. It focuses thereby in particular on economic rationales for the criminal enforcement of IP law and optimal levels of punishment. This paper discusses, third, the limitations of the economic approach to criminal sanctions in IP law before closing with the suggestion of a future research agenda for economists.
In summary, this paper constitutes a strong plea for both social economics research, behavioural approaches, and empirical economic research for the assessment of criminal sanctions in IP law while critically acknowledging the limitations of an economic analysis of criminal law.
May 24, 2011 | Permalink | Comments (0)
Wright on Padilla and Integrated Criminal Defense
Ronald F. Wright (Wake Forest University - School of Law) has posted Padilla and The Delivery of Integrated Criminal Defense (UCLA Law Review, Vol. 58, 2011) on SSRN. Here is the abstract:
The traditional starting point for the Sixth Amendment jurisprudence is the individual defense attorney, acting alone. Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with a focus on the lawyer’s responsibility to consult others and to create an effective defense team. This evolving conception of the lawyer as a team manager is a long-term trend that applies throughout the legal profession. Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues. Some of those methods contracted out the immigration work to specialists outside the organization; others brought the immigration expertise inside the organization, either through placing experts in a single state-level position, or by disseminating immigration experts in local offices. The Padilla holding gives some impetus to the insider strategy. It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue. As a result, Padilla tilts the field towards larger defender organizations with greater specialization of function and more coordination of effort among attorneys - in short, toward a more bureaucratic criminal defense.
May 24, 2011 | Permalink | Comments (0)
May 23, 2011
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which also links to papers and opinion below:
- Kawashima v. Holder: (1) Whether the Ninth Circuit erred in holding that petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and petitioners were therefore removable; and (2) whether the Ninth Circuit’s 2010 amendment of its 2007 final judgment concerning petitioner Fusako Kawashima violated Federal Rule of Appellate Procedure 41, where the government did not seek rehearing or other review of that final judgment in 2007.
May 23, 2011 | Permalink | Comments (0)
Opinion in California prison overcrowding case
The case is Brown v. Plata. Here is the syllabus:
California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California’s prisons was deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.
Held:
1. The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Pp. 12–41.
(a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison’s population. Under the PLRA, only a three-judge court may limit a prison population. 18 U.S.C. §3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” §3626(a)(3)(E); and that the relief is “narrowly drawn, extends no further than necessary. . . , and is the least intrusive means necessary to correct the violation,” §3626(a)(1)(A). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. 12–15.
(b) The Coleman and Plata courts acted reasonably in convening a three-judge court. Pp. 15–19.
(1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U. S. C. §1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 95, n. 12. Pp. 15–16.
(2) Section 3626(a)(3)(A)(i)’s previous order requirement was satisfied in Coleman by the Special Master’s 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed—12 years in Coleman, and 5 years in Plata. Contrary to the State’s claim, §3626(a)(3)(A)(ii)’s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing a population limit,which would delay an eventual remedy, prolong the courts’ involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. 16–19.
(c) The three-judge court did not err in finding that “crowding [was] the primary cause of the violation,” §3626(a)(3)(E)(i). Pp. 19–29.
(1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding’s effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. 19–24.
(2) Contrary to the State’s claim, the three-judge court properly admitted, cited, and considered evidence of current prison conditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prison conditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court’s orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court’s sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. 24–26.
(3) It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. 26–29.
(d) The evidence supports the three-judge court’s finding that “no other relief [would] remedy the violation,” §3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve over-crowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained.The court also did not err when it concluded that, absent a population reduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion here. Pp. 29–33.
(e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. 33–41.
(1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a “ ‘ “fit” between the [rem-edy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution’s need for a population limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions.The order may shape or control the State’s authority in the realm of prison administration, but it leaves much to the State’s discretion. The order’s limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. 33–36.
(2) The three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The PLRA’s “substantial weight” requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in some California counties,several States, and Canada. The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. 37–41.
2. The three-judge court’s order, subject to the State’s right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41–48.
(a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. 41–42.
(b) The three-judge court’s conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA’s narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. 42–44.
(c) The three-judge court did not err in providing a 2-year deadline for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order’s basic premise. Pp. 44–48.
Affirmed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.
May 23, 2011 | Permalink | Comments (1)
May 22, 2011
Terwindt on Allegations of Torture
Carolijn Terwindt has posted Were They Tortured or Did They Make that Up? Ethnographic Reflections on Torture Allegations in the Basque Country in Spain on SSRN. Here is the abstract:
Academic literature about torture has addressed a wide range of questions. An important facet, however, has not yet received sufficient attention. Given that torture tends to occur in secrecy, how does the lack of information (that is perceived to be objective and authoritative) affect the societal response to allegations of torture and the social consequences of such allegations? In this article, the controversy about torture allegations in Spain is used to examine this issue and explore the insidious effects the uncertainty has on society. The Spanish state is unable to provide a generally accepted account in response to the continuous torture allegations from Basque prisoners accused of terrorism or street violence. Based on ethnographic research, this article describes how Spanish and Basque society can be divided into believers, non-believers and people who do not care about torture allegations. Because of the centrality of such allegations in many criminal cases, this division also polarizes public perceptions of the entire criminal justice system.
May 22, 2011 | Permalink | Comments (0)
Top-Ten Recent SSRN Downloads
in criminal law and procedure ejournals are here. The usual disclaimers apply.
| Rank | Downloads | Paper Title |
|---|---|---|
| 1 | 545 | The Law Enforcement Surveillance Reporting Gap Christopher Soghoian, Indiana University Bloomington - Center for Applied Cybersecurity Research, Date posted to database: April 11, 2011 |
| 2 | 438 | 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 | 282 | Why Courts Should Not Quantify Probable Cause Orin S. Kerr, George Washington University - Law School, Date posted to database: March 30, 2011 |
| 4 | 255 | 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 | 242 | Nothing to Hide: The False Tradeoff between Privacy and Security Daniel J. Solove, George Washington University Law School, Date posted to database: May 11, 2011 [new to top ten] |
| 6 | 216 | 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 [5th last week] |
| 7 | 199 | Can Targeted Killing Work as a Neutral Principle? Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: March 18, 2011 [6th last week] |
| 8 | 193 | Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture? Larry Laudan, Instituto de Investigaciones Filosoficas, UNAM, Date posted to database: April 21, 2011 |
| 9 | 173 | In Defense of Tax Privacy Joshua D. Blank, New York University School of Law, Date posted to database: March 31, 2011 |
| 10 | 168 | 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 |
May 22, 2011 | Permalink | Comments (0)
