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Univ. of San Diego School of Law

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Saturday, June 18, 2011

Etienne on McGuire on Rape Prosecutions and the Civil Rights Movement

Etienne margareth Margareth Etienne (University of Illinois College of Law) has posted Rape Prosecutions and the Civil Rights Movement at Jotwell, discussing Danielle L. McGuire, At the Dark End of the Street: Black Women, Rape, and Resistance—A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power (Knopf Publishers, 2010). In part:

McGuire writes about the prosecution of rape and sexual assault committed against black women.  As a historian, McGuire focuses on two important aspects of these criminal cases.  First, the cases served as bellwethers for the social and political rights of black women.  Second, they involved some of the earliest attempts to organize and mobilize churches and political groups in the fight for civil rights.

June 18, 2011 | Permalink | Comments (2)

Friday, June 17, 2011

Clapham on Corporations and Criminal Complicity

Andrew Clapham (Geneva Academy of International Humanitarian Law and Human Rights) has posted Corporations and Criminal Complicity on SSRN. Here is the abstract:

This chapter, delivered as a paper to a Conference in Oslo focusing on the Norwegian Pension Fund -Global, explains the international criminal law principles that might be applied to corporations accused of complicity in international crimes. It traces some of the early uses of the concept of complicity in the context of human rights complaints against corporations.

June 17, 2011 | Permalink | Comments (0)

Dodge on Extraterritoriality

Dodge william William S. Dodge (University of California - Hastings College of the Law) has posted Morrison's Effects Test (Southwestern University Law Review, Forthcoming) on SSRN. Here is the abstract:

In Morrison v. National Australia Bank, the Supreme Court held that the presumption against extraterritoriality applies "in all cases." But the Court also changed the presumption by shifting its focus from the location of the conduct to the location of the effects. This symposium contribution argues this shift is consistent with the presumption’s underlying rationale and with the Court’s prior case law. It also applies Morrison’s effects test to RICO.

June 17, 2011 | Permalink | Comments (0)

Hallevy on the Insanity Defense and Dynamic Psychiatry

Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted Modern Examination of Insanity Defense in Criminal Law Under the Development of the Dynamic Psychiatry – From Categorization to Functionalism on SSRN. Here is the abstract:

In past, the common legal concept of insanity defense was a concept of categories. Accordingly, in order to prevent imposition of criminal liability upon the offender out of insanity, the offender should have been recognized as suffering of "mental disease". Only if the mental disease could have been related to a specific list of diseases, the offender could have been considered as insane.

Medical major developments and legal developments since the nineteenth century brought up changes in this concept. The dynamic psychiatry, which became major measure in mental disorder understanding, compelled a deep change in the former concept. It is argued, that any mental disorder should be examined functionally, and not by categories, as to the application upon the defense of insanity in criminal law. Only under functional examination, it is possible to seriously examine cases of temporary insanity or partial insanity. The article argues for the functional examination of mental disorder as the necessary measure to examine the applicability of the insanity defense in criminal law.

June 17, 2011 | Permalink | Comments (1)

Thursday, June 16, 2011

Pell & Soghoian on Law Enforcement Access to Location Data

Stephanie K. Pell and Christopher Soghoian (affiliation not provided to SSRN and Indiana University Bloomington - Center for Applied Cybersecurity Research) have posted Can You See Me Now: Toward Reasonable Standards for Law Enforcement Access to  Location Data that Congress Could Enact on SSRN. Here is the abstract:

Increasing law enforcement use of historical and prospective location information generated by cell phones and other mobile devices has led some Magistrate Judges to scrutinize government applications to compel third party disclosure, as well as the very legal standards governing law enforcement access. Uncertainty regarding those standards has created an inconsistent legal landscape, which led Congress to hold a series of Electronic Communications Privacy Act (ECPA) reform hearings in 2010, including one on location information. Congress must assess the privacy impact of current access standards for location information – an assessment we believe will illustrate the urgent need for ECPA reform, both to clarify the law and reestablish the balance of interests among law enforcement, privacy and industry equities. This paper offers a guide to that analysis.

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June 16, 2011 | Permalink | Comments (0)

Opinion in case involving defendant's standing to challenge federal statute on Tenth Amendment grounds

The case is Bond v. United States. Here is the syllabus:

When petitioner Bond discovered that her close friend was pregnant by Bond’s husband, she began harassing the woman. The woman suffered a minor burn after Bond put caustic substances on objects the woman was likely to touch. Bond was indicted for violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (8), and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States. The District Court denied Bond’s motion to dismiss the §229 charges on the ground that the statute exceeded Congress’ constitutional authority to enact. She entered a conditional guilty plea, reserving the right to appeal the ruling on the statute’s validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Gov-ernment’s position that she lacked standing. The Government has since changed its view on Bond’s standing.

Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States. Pp. 3–14.

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June 16, 2011 | Permalink | Comments (0)

Opinion on exclusionary rule and reasonable reliance on appellate court decisions

The case is Davis v. United States. Here is the syllabus:

While conducting a routine vehicle stop, police arrested petitioner Willie Davis, a passenger, for giving a false name. After handcuffing Davis and securing the scene, the police searched the vehicle and found Davis’s revolver. Davis was then indicted on charges of being a felon in possession of a firearm. In a suppression motion, Davis acknowledged that the search of the vehicle complied with existing Eleventh Circuit precedent interpreting New York v. Belton, 453 U. S. 454, but Davis raised a Fourth Amendment challenge to preserve the issue on appeal. The District Court denied the motion, and Davis was convicted. While his appeal was pending, this Court announced, in Arizona v. Gant, 556 U. S. ___, ___, a new rule governing automobile searches incident to arrests of recent occupants. The Eleventh Circuit held, under Gant, that the vehicle search at issue violated Davis’s Fourth Amendment rights, but the court declined to suppress the revolver and affirmed Davis’s conviction.

Held: Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Pp. 6–20.

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June 16, 2011 | Permalink | Comments (1)

Opinion in case involving relevance of age to custody determination under Miranda

The case is J. D. B. v. North Carolina. Here is the syllabus:

Police stopped and questioned petitioner J. D. B., a 13-year-old, seventh-grade student, upon seeing him near the site of two home break-ins. Five days later, after a digital camera matching one of the stolen items was found at J. D. B.’s school and seen in his possession, Investigator DiCostanzo went to the school. A uniformed police officer on detail to the school took J. D. B. from his classroom to a closed-door conference room, where police and school administrators questioned him for at least 30 minutes. Before beginning, they did not give him Miranda warnings or the opportunity to call his grandmother, his legal guardian, nor tell him he was free to leave the room. He first denied his involvement, but later confessed after officials urged him to tell the truth and told him about the prospect of juvenile detention. DiCostanzo only then told him that he could refuse to answer questions and was free to leave. Asked whether he understood, J. D. B. nodded and provided further detail, including the location of the stolen items. He also wrote a statement, at DiCostanzo’s request. When the school day ended, he was permitted to leave to catch the bus home. Two juvenile petitions were filed against J. D. B., charging him with breaking and entering and with larceny. His public defender moved to suppress his statements and the evidence derived therefrom, arguing that J. D. B. had been interrogated in a custodial setting without being afforded Miranda warnings and that his statements were involuntary. The trial court denied the motion. J. D. B. entered a transcript of admission to the charges, but renewed his objection to the denial of his motion to suppress. The court adjudicated him delinquent, and the North Carolina Court of Appeals and State Supreme Court affirmed. The latter court declined to find J. D. B.’s age relevant to the determination whether he was in police custody.

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June 16, 2011 | Permalink | Comments (0)

Opinion in case involving sentencing for rehabilitation purposes

The case is Tapia v. United States. Here is the syllabus:

Petitioner Tapia was convicted of, inter alia, smuggling unauthorized aliens into the United States. The District Court imposed a 51-month prison term, reasoning that Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ Residential Drug Abuse Program (RDAP). On appeal, Tapia argued that lengthening her prison term to make her eligible for RDAP violated 18 U. S. C. §3582(a), which instructs sentencing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” The Ninth Circuit disagreed. Relying on Circuit precedent, it held that a sentencing court cannot impose a prison term to assist a defendant’s rehabilitation, but once imprisonment is chosen, the court may consider the defendant’s rehabilitation needs in setting the sentence’s length.

Held: Section 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Pp. 3–15.

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June 16, 2011 | Permalink | Comments (0)

Tuesday, June 14, 2011

Hernandez on State Courts and Padilla

Hernandez cesarCésar Cuauhtémoc García Hernández (Capital University Law School) has posted When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions (Loyola Journal of Public Interest Law, Vol. 12, p. 299, 2011) on SSRN. Here is the abstract:

Padilla v. Kentucky’s recognition of deportation consequences as a component of the Sixth Amendment effective assistance of counsel guarantee promised dramatic impact on criminal proceedings involving noncitizen defendants. Realizing this promise depends on courts’ ability to require defense attorneys to provide accurate advice about the deportation consequences of a conviction. Because state courts decide most ineffective assistance of counsel claims, a review of their treatment of Padilla-based claims offers an insightful glimpse into this decision’s impact on criminal representation of noncitizen defendants. This article examines state court decisions from the first six months after Padilla was issued and concludes that state courts’ lack of familiarity with immigration law has manifested itself in a concerning failure to grant Padilla-based relief when attorneys have inaccurately advised defendants about the prospect of deportation.

June 14, 2011 | Permalink | Comments (0)

Pinaire on bounty hunting

Brian K. Pinaire (Lehigh University - Political Science) has posted Who Let (the) Dog Out? (Criminal Law Bulletin, Vol. 47, No. 6, 2011) on SSRN. Here is the abstract:

This Essay provides the first-ever scholarly investigation of the origins of "bounty hunting" as the practice exists in the United States. With an historical focus on British policies instituted around the turn into the eighteenth century, I argue that the scheme of regularized rewards for the arrest and prosecution of alleged criminal offenders constitutes the "roots" of American bounty hunting. This early system, whose practitioners were referred to as "thief-takers," formalized and legitimized the notion of incentivized pursuit of "fugitives" and - while eventually phased out in Britain - provides the historical and conceptual parallel for the for-profit, private sector-level apprehension of individuals wanted by the law in the United States today. These early policies are, in short, what let the "Dog" out in the Anglo-American tradition.

June 14, 2011 | Permalink | Comments (0)

Dolovich on the Permanent Prisoner

Dolovich sharon Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Creating the Permanent Prisoner (LIFE WITHOUT PAROLE: AMERICA'S NEW DEATH PENALTY?, Charles J. Ogletree, Jr. and Austin Sarat, eds., NYU Press, Forthcoming) on SSRN. Here is the abstract:

Of the 2.3 million people currently behind bars in the United States, only 41,000 - a mere 1.7% - are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. In this essay, I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. Instead, a variety of penal practices combine to ensure against any meaningful loosening of control over the people the state has imprisoned. This essay explores the exclusionary effects of several such practices, including the destructive character of prison conditions, the increasing official reluctance to grant parole, and the collateral consequences of felony convictions, which heavily burden the prospects of newly released offenders. This way of framing American penal policy may seem to inappropriately sideline the more legitimate penological purposes - retribution, deterrence, etc. But there is a strikingly poor fit between these more familiar penological justifications and the actual practices of the penal system. By contrast, the exclusionary account offered in this essay is not only consistent with current penal practice, but also helps to make sense of the pervasive normative conception of prisoners as both noncitizens and nonhumans. This normative construction is a key component of the exclusionary project. If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.

June 14, 2011 | Permalink | Comments (0)

Monday, June 13, 2011

Denbeaux et al on abusing drugs during Guantanamo interrogations

Denbeaux_mark Mark Denbeaux (pictured), Sean August Camoni , Brian Beroth , Mehgan Chrisner , Chrystal Loyer , Paul W. Taylor and Kelli Stout (Seton Hall University - School of Law , affiliation not provided to SSRN , affiliation not provided to SSRN , affiliation not provided to SSRN , affiliation not provided to SSRN , Center for Policy & Research and affiliation not provided to SSRN) have posted Drug Abuse: An Exploration of the Government's Use of Mefloquine at Guantanamo on SSRN. Here is the abstract:

Mefloquine is an antimalarial drug that has long been known to cause severe neuropsychological adverse effects such as anxiety, paranoia, hallucinations, aggression, psychotic behavior, mood changes, depression, memory impairment, convulsions, loss of coordination (ataxia), suicidal ideation, and possibly suicide, particularly in patients with a history of mental illness. A prescribing physician must exercise caution and informed judgment when weighing the risks and potential benefits of prescribing the drug. To administer this drug with its severe potential side effects without a malaria diagnosis and without taking a patient’s mental health history is not medically justified. Yet as a matter of official policy, the standard operating procedure implemented by the United States military at Guantanamo Bay was to administer high doses of mefloquine to detainees whether or not any use of the drug was medically appropriate and without consideration of the detainees’ mental health.

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June 13, 2011 | Permalink | Comments (0)

Call for papers from junior faculty for AALS panel on the pretrial process

The papers will be presented in conjunction with a panel sponsored by the AALS Section on Criminal Justice at the 2012 AALS annual meeting in Washington, D.C. The call is limited to those who have been teaching for six years or fewer as of July 1, 2011. The complete announcement follows the jump.

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June 13, 2011 | Permalink | Comments (0)

Call for papers: Charleston Law Review's annual Supreme Court preview

Articles or essays "addressing a case before the Court in its October 2011 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court," are currently being considered. The full announcement follows the jump.

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June 13, 2011 | Permalink | Comments (0)

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers and opinions below:

  • Gonzalez v. Thaler: limited to two questions: (a) Whether there was jurisdiction to issue a certificate of appealability under 28 U.S.C. § 2253(c) and to adjudicate petitioner’s appeal; and (b) whether the application for a writ of habeas corpus was out of time under 28 U.S.C. § 2244(d)(1) due to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
  • Setser v. United States: whether district court has authority to order a federal sentence be served consecutive to an as-yet-unimposed state sentence.
  • Smith v. Louisiana: 1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.

June 13, 2011 | Permalink | Comments (0)

Sunday, June 12, 2011

Top-Ten Recent SSRN Downloads

Ssrn logo in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 581 The Law Enforcement Surveillance Reporting Gap
Christopher Soghoian,
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011
2 464 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
3 321 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
4 315 The Objects of the Constitution
Nicholas Quinn Rosenkranz,
Georgetown University - Law Center,
Date posted to database: May 20, 2011
5 276 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
6 238 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
7 211 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
8 177 Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky
Mario K. Castillo,
Southern District of Texas, Brownsville Division,
Date posted to database: May 11, 2011 [9th last week]
9 168 Moral Character, Motive, and the Psychology of Blame
Janice Nadler, Mary-Hunter McDonnell, Mary-Hunter McDonnell,
Northwestern University School of Law, Northwestern University - Kellogg School of Management, Northwestern University School of Law,
Date posted to database: April 21, 2011 [8th last week]
10 139 The Lady, or the Tiger? A Field Guide to Metaphor and Narrative
Linda L. Berger,
Mercer University School of Law,
Date posted to database: April 25, 2011 [new to top ten]

June 12, 2011 | Permalink | Comments (0)