October 17, 2011
"En Banc Ninth Circuit on When Using a Taser to Subdue A Suspect Counts as “Excessive Force” Under the Fourth Amendment"
Orin Kerr has a useful summary of the case at The Volokh Conspiracy. He finds it to be "a plausible candidate for Supreme Court review."
"When Fairness and the Law Collide, One Jurist Is Troubled"
Adam Liptak's take on Justice Alito's approach, with particular reference to some criminal cases, in the New York Times. In part:
WASHINGTON — Justice Samuel A. Alito Jr. gets frustrated.
He is alert to injustice, and he is a careful legal craftsman — and sometimes those two qualities collide. About once a term, he muses about the conflict from the bench.
"France court orders block on 'copwatch' website"
The Tribunal de Grande Instance de Paris [official website, in French] on Friday ordered [judgment in PDF, in French] French Internet service providers to block access to Copwatch Nord Paris I-D-F, a website designed to allow civilians to post videos of alleged police misconduct. The decision was applauded by the police union, Alliance Police Nationale (APN) [union website, in French], which argued that the website incited violence against police.
. . .
In August, the US Court of Appeals for the First Circuit [official website] ruled that there is a clearly-established First Amendment right [JURIST report] to film police officers performing their duties in a public space.
Harlow on Corporate Criminal Liability for Homicide
James Harlow has posted Corporate Criminal Liability for Homicide: A Statutory Framework (Duke Law Journal, Vol. 61, No. 1, p. 123, 2011) on SSRN. Here is the abstract:
Since the nineteenth century, judges, legislators, prosecutors, and academics have grappled with how best to accommodate within the criminal law corporations whose conduct causes the death of others. The result of this debate was a gradual legal evolution towards acceptance of corporate criminal liability for homicide. But, as this Note argues, the underlying legal framework for such liability is ill fitting and largely ineffective. Given the public benefit that would accrue from a clearly defined and potent liability scheme, this Note proposes a model criminal statute that would hold corporations directly liable for homicide. The proposed statute draws upon basic precepts of corporate criminal liability, as well as legislative developments in the United Kingdom and the insights of organizational theory. Ultimately, this Note argues that a statutory scheme would allow prosecutions of corporations for homicide to proceed more accurately, effectively, and fairly.
Stevenson on Judicial Deference to Legislatures on Statutory Definitions of Voluntary Consent to Police Searches
Drury D. Stevenson (South Texas College of Law) has posted Judicial Deference to Legislatures in Constitutional Analysis (North Carolina Law Review, Vol. 90, 2012) on SSRN. Here is the abstract:
North Carolina is one of the only states to have a statutory definition of voluntary consent for police searches; it essentially codified the Supreme Court’s “Bustamonte” rule. In theory, this statute could eventually face a constitutional challenge if the Supreme Court adopted a requirement of informed consent – police warnings of the right to refuse a search – as many have urged. Considering this possibility as a hypothetical, it seems strange that conventional Fourth Amendment analysis has largely ignored whether challenged state actions are legislative, executive, or judicial; attention has focused instead on federalism concerns, interpretive approaches, and tradeoffs between public safety and individual privacy. Nevertheless, there are both policy reasons and anecdotal evidence suggesting that the Supreme Court should, and in fact occasionally does, defer to legislatures in certain matters of criminal procedure, even when it would not defer to identical decisions by police.
The potential clash between this statute and constitutional doctrine illustrates these points nicely. This Article uses this localized example as a launching point to address the larger issue of how state legislation can color the Supreme Court’s analysis. Separation of powers is an important but unexplored component of criminal procedure, and this Article is a first foray into this inquiry. This missing piece of Fourth Amendment analysis has broad implications for many areas of criminal procedure.
October 16, 2011
Top-Ten Recent SSRN Downloads
University of San Diego School of Law,
Date posted to database: September 8, 2011
|2||343||Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization
Lucian E. Dervan,
Southern Illinois University School of Law,
Date posted to database: August 24, 2011
|3||231||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011 [4th last week]
|4||228||Tangled Up in Law: The Jurisprudence of Bob Dylan
Michael L. Perlin,
New York Law School,
Date posted to database: September 1, 2011 [3rd last week]
|5||205||The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death
Paul C. Giannelli,
Case Western Reserve University School of Law,
Date posted to database: August 26, 2011
|6||198||Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism
Georgetown University - Law Center,
Date posted to database: September 9, 2011 [10th last week]
|7||182||Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: August 29, 2011 [6th last week]
|8||173||Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively
Deborah W. Denno,
Fordham University School of Law,
Date posted to database: August 15, 2011 [7th last week]
|9||171||The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011 [8th last week]
|10||161||The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
The George Washington University Law School,
Date posted to database: September 8, 2011 [9th last week]