Friday, June 3, 2011
Ronald J. Allen (Northwestern University Law School) has posted Taming Complexity: Rationality, the Law of Evidence, and the Nature of the Legal System on SSRN. Here is the abstract:
This essay explores the implications of complexity for understanding both the law of evidence and the nature of the legal system. Among the propositions critically analyzed is that one significant way to understand the general problem of the meaning of rationality is that it has involved a multivariate search for tools to understand and regulate a hostile environment. The law of evidence is conceptualized as a subset of this effort, at least in part, as involving a search for tools to regulate the almost infinitely complex domain of potentially relevant evidence and at the same time to accommodate policy demands. The proposition is then considered that the legal system of which the evidentiary system is a part has emergent properties that may not be deducible from its component parts and that suggest that it may be, or at least has properties highly analogous to, a complex adaptive system. One implication of this analysis is that the tools of standard academic research that rely heavily on the isolation and reduction of analytical problems to manageable units to permit them to be subjected to standard deductive methodologies may need to be supplemented with analytical tools that facilitate the regulation of complex natural phenomena such as fluid dynamics. This has direct implications for such things as the conception of law as rules, and thus for the Hart/Dworkin debate that has dominated jurisprudence for 50 years. That debate may have mis-characterized the object of its inquiry , and thus the Dworkinian solution to the difficulties of positivism is inapplicable. Even if that is wrong, it can be shown that the Dworkinian solution is not achievable and cannot rationally be approximated. Solutions to legal problems within the legal system as a whole (as compared to any particular node within the legal system) are arrived at through a process of inference to the best explanation that occurs within a highly interconnected set of nodes that has similarities to a neural network.
This draft contrbution to a fothcoming Festschrift for Antony Duff challenges his justly famous account according to which criminal responsibilty is doubly relational. It is relational in the sense that it is owed to someone; it is also relational in the sense that an existing relationship (citizen-country, guest-host, etc.) figures in justifying its being owed to that someone. I discuss the connection, in Duff's writings, between these views about responsibility and someof his views about authority. I suggest that, even according to Duff in less guarded moments, the normal justification for authority, and hence for criminal responsibility, is non-relational.
Thursday, June 2, 2011
Pieter Du Toit and Gerrit Pienaar (North-West University and North-West University) have posted Corporate Identity as Foundation of the Criminal Liability of Legal Persons (1): Theoretical Principles (Potchefstroom Electronic Law Journal, Vol. 14, No. 1, 2011) on SSRN. Here is the abstract:
The different models for the criminal liability of juristic persons reveal a tension between individualist and realistic approaches. For individualists a corporation is the product of a union of individuals. This means that a juristic person can only be held criminally responsible if the conduct and fault of an individual involved in the entity are attributed to the juristic person. For realists a corporate entity has an existence independent of its individual members. The juristic person is blameworthy because its corporate identity or corporate ethos encouraged the criminal conduct. A study of organisational theory reveals that corporate crime may not necessarily be traced to the fault of specific individuals. Corporate criminality often is the result of complex decisions on different levels of the corporate hierarchy and furthermore is encouraged by the manner in which the organisation is structured. Prominent scholars such as the American philosopher Peter A French and the Australian Brent Fisse rejected an individualist approach and attempted to develop models of corporate fault based on the corporate identity idea. The failure of a corporation to take preventative or corrective measures in reaction to corporate criminal conduct is regarded as the basis for corporate fault by these authors. French calls this the "principle of responsive adjustment" whilst Fisse names it the concept of "reactive fault." A more sophisticated model (the "corporate ethos" model), which is also more reconcilable with the basic notions of criminal law, was developed by the American legal scholar Pamela Bucy.
Wendy Gerwick Couture (pictured) and B. Clifford Gerwick III (University of Idaho College of Law and affiliation not provided to SSRN) has posted The Evolutionary Biology of Fungi and Fraud (John Marshall Law Journal, Vol. V, No. 1, 2011) on SSRN. Here is the abstract:
In this essay, the authors – a law professor and a plant biologist – offer a fresh perspective on the use of broad federal fraud statutes to combat fraud by drawing a comparison with the use of multi-site fungicides to combat plant disease. Multi-site fungicides are effective at preventing the evolution of resistant strains of fungi, but they are subject to increased regulatory scrutiny amid concerns about off-target toxicity. Similarly, broad fraud statutes serve as a stopgap to prevent the evolution of new types of fraud, but they are widely criticized as unduly vague and as interfering with the operation of specific fraud statutes. Plant biologists’ successful alternatives to multi-site fungicides inform the discussion of alternative ways to combat fraud that avoid the problems associated with broad fraud statutes.
Carroll Seron and Joseph Pereira (University of California, Irvine School of Law; Department of Criminology, Law & Society and The Graduate Center, CUNY - Data Service) have posted Policing Police Misconduct in a Democratic Society: The Judgments of Police Officers and White, Black, and Hispanic Citizens on SSRN. Here is the abstract:
Almost since their inception, there have been calls for the reform of civilian review boards. Many of these reforms call for greater independence of review boards, including the authority to carry out discipline of police officers for corroborated cases of police misconduct. To date, however, there has been little empirical research on what constitutes reasonable discipline for an alleged case of police misconduct. We seek to fill in this gap in our understanding by comparing citizens’ and officers’ judgments of appropriate discipline for alleged misconduct. Using a factorial design, our findings show that there is a surprisingly strong level of consensus between citizens and officers about which evidence is most significant to weigh in reaching a judgment but that there is a lack of consensus between citizens and officers about the appropriate level of discipline. Not surprisingly, police officers’ judgments of fair punishment are significantly lower than their citizen counterparts. That said, citizens’ judgments are, these findings show, reasonable and fair in light of the alleged infraction. As steps are taken to reform civilian review procedures, the findings reported here provide an empirical foundation for developing disciplinary guidelines that takes account of a community’s understanding of what constitutes fair and reasoned discipline.
Wednesday, June 1, 2011
M. Isabel Medina (Loyola University New Orleans - School of Law) has posted Symposium on Federalism at Work: State Criminal Law, Noncitizens and Immigration Related Activity - An Introduction on SSRN. Here is the abstract:
Over the course of the last few decades states have become much more aggressive about undertaking state regulation of undocumented migration. To some extent, states have pursued these efforts because of the perception that the federal government has not done enough to discourage or prevent undocumented migration. The federal government, however, since the early 1990s, has been devoting greater resources and attention to addressing the problem of undocumented migration.
François Tanguay-Renaud (Osgoode Hall Law School - York University) has posted Individual Emergencies and the Rule of Criminal Law (RETHINKING CRIMINAL LAW THEORY: NEW CANADIAN PERSPECTIVES IN THE PHILOSOPHY OF DOMESTIC, TRANSNATIONAL, AND INTERNATIONAL CRIMINAL LAW, F. Tanguay-Renaud and J. Stribopoulos, eds., Hart Publishing, 2011) on SSRN. Here is the abstract:
The paper discusses various accommodations that ought to be made in the substantive criminal law to account for the challenges that individual emergencies may pose to the legitimacy of its rule. I address specific puzzles related to emergency-related reason/fact-relative justifications, evidence-relative justifications, and excuses. The paper also includes a discussion of the status of morality in the face of individual emergencies, as well as of the rule and authority of criminal law. I conclude by differentiating the challenges posed by individual and more generalised emergencies.
Susan A. Bandes (University of Miami - School of Law) has posted The Lone Miscreant, the Self-Training Prosecutor, and Other Fictions: A Comment on Connick v. Thompson (Fordham Law Review, Vol. 80, 2012) on SSRN. Here is the abstract:
In Connick v. Thompson, the Supreme Court in a 5-4 decision blocked one of the last remaining paths to prosecutorial accountability for the violation of constitutionally mandated discovery obligations under Brady v. Maryland. The upshot of Connick is that unless non-compliance is frequent and notorious enough to reach the level of custom, prosecutors’ offices are insulated from Section 1983 liability - entity as well as individual - for failing to comply with Brady. The immediate effect of Connick is to leave John Thompson without a remedy for spending 18 years in prison, narrowly escaping execution for a crime he didn’t commit, while members of the New Orleans Parish District Attorney’s office concealed the evidence that would ultimately exculpate him.
Tuesday, May 31, 2011
Rongjie Lan (Zhejiang University) has posted A False Promise of Fair Trials: A Case Study of China's Malleable Criminal Procedure Law (Pacific Basin Law Journal, Vol. 27, p. 101, 2010) on SSRN. Here is the abstract:
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China’s record of human rights protection.
Issue summary is from ScotusBlog:
- Perry v. New Hampshire: Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when teh suggestive circumstances were orchestrated by the police?
The case is Ashcroft v. al-Kidd. Here is the syllabus:
Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness statute, 18 U. S. C. §3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information “crucial” to Sami Omar al-Hussayen’s prosecution would be lost if al-Kidd boarded his flight.Prosecutors never called al-Kidd as a witness, and (as he alleges) never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft’s alleged policy. The District Court denied Ashcroft’s motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.
Monday, May 30, 2011
Paul G. Cassell (pictured) and Edna Erez (University of Utah - S.J. Quinney College of Law and University of Illinois at Chicago) have posted Victim Impact Statements and Ancillary Harm: The American Perspective (Canadian Criminal Law Review, Vol. 15, p. 149, 2011) on SSRN. Here is the abstract:
A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.
|1||567||The Law Enforcement Surveillance Reporting Gap
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011
|2||446||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||291||Why Courts Should Not Quantify Probable Cause
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 30, 2011
|4||286||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 [5th last week]
|5||264||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 [4th last week]
|6||257||The Objects of the Constitution
Nicholas Quinn Rosenkranz,
Georgetown University - Law Center,
Date posted to database: May 20, 2011 [new to top ten]
|7||224||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 [6th last week]
|8||201||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
|9||186||In Defense of Tax Privacy
Joshua D. Blank,
New York University School of Law,
Date posted to database: March 31, 2011
|10||175||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