Saturday, November 12, 2011
Philip Dore (Student, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Greenlighting American Citizens: Proceed with Caution (Louisiana Law Review, Vol. 72, p. 255, 2011) on SSRN. Here is the abstract:
Name-calling is hurtful. But when the Obama Administration labeled Anwar al-Awlaki as a “global terrorist,” it was a death sentence. According to various media reports, the Obama Administration authorized the C.I.A. to use lethal force against al-Awlaki, a dual U.S.-Yemeni citizen. A U.S. drone attack targeted but missed al-Awlaki in May 2011. Approximately four months later, armed drones operated by the C.I.A. fired a barrage of Hellfire missiles at a car carrying him and at least one other person. Al-Awlaki and another American citizen, Samir Khan, were killed.
This Comment argues that the C.I.A.’s targeted killing of al-Awlaki is prohibited under 18 U.S.C. § 1119, commonly known as the foreign-murder statute. Although the Obama Administration might seek to avoid this prohibition by relying on the laws of war, this Comment concludes that any such reliance is misplaced for two reasons: (1) the particular laws of war on which the Administration must rely are non-self-executing, and (2) those laws have not been incorporated in domestic legislation. Consequently, the Administration must rely on the Authorization for Use of Military Force (AUMF) to justify violating the foreign-murder statute. The AUMF does not, however, provide the needed justification.
Giannini on Procedural Justice, the Crime Victims‘ Rights Act, and the Victim‘s Right to Be Reasonably Protected from the Accused
Mary Margaret Giannini (Associate Professor of Law, Florida Coastal School of Law) has posted Redeeming an Empty Promise: Procedural Justice, the Crime Victims‘ Rights Act, and the Victim‘s Right to Be Reasonably Protected from the Accused (Tennessee Law Review, Vol. 78, 2010) on SSRN. Here is the abstract:
The federal Crime Victims‘ Rights Act (CVRA) provides victims with a host of rights, including reasonable protection from the accused. However, the current protection language in the CVRA offers very little to victims in the form of a meaningful, substantive, and enforceable right. Constitutional principles, tort immunity concepts, as well as other statutory limits within the CVRA itself, constrain the extent to which victims can rely on or enforce a right to protection. While the victim‘s CVRA right to protection may currently represent an empty promise, this article asserts that the right can be redeemed if it is interpreted and redefined by procedural justice principles. Many of the other rights granted to victims under the CVRA are naturally grounded in procedural justice theory. When framed in this manner, the CVRA affords victims a meaningful role in the prosecution of the offender, while also providing a tangible process by which to enforce their rights. This article proposes ways to bring the victim‘s protection right into alignment with procedural justice theory as well as with the other rights granted to victims under the CVRA. Viewing the CVRA‘s right to protection through procedural justice principles, the CVRA will cease to be an empty promise and instead, can serve crime victims in a meaningful way.
Friday, November 11, 2011
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used - and importantly, continues to be used - as state-imposed sexual discipline.
Katie Tinto (New York University (NYU) - School of Law) has posted Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel (American Criminal Law Review, Vol. 48, p. 1335, 2011) on SSRN. Here is the abstract:
This Article analyzes the future of the Sixth Amendment right to counsel following the United States Supreme Court case of Montejo v. Louisiana, 129 S. Ct. 2079 (2009). In Montejo, the Court overturned a long-standing prohibition on the interrogation of a represented defendant without his counsel present. Now, following Montejo, the police may approach a criminal defendant and ask him, outside the presence of his lawyer, to waive his Sixth Amendment right to have counsel present during an interrogation.
Thursday, November 10, 2011
Ronald J. Rychlak and Corey Hinshaw (University of Mississippi, School of Law, pictured, and affiliation not provided to SSRN) have posted From the Classroom to the Courtroom: Therapeutic Justice and the Gaming Industry's Impact on Law (Mississippi Law Journal, Vol. 74, No. 3, Winter 2005) on SSRN. Here is the abstract:
Gambling is increasing in our society, and the courts cannot ignore the medically recognized mental disorder of pathological gambling that is likely the root cause of a number of crimes and social ills. Therapeutic justice can be an important way for society to look at these problems. Incarcerating compulsive gamblers without identification of their problems does not help the criminal or society as a whole. Drug courts throughout the nation and the gambling court in NY can serve as models for future gambling courts.
Dan Markel (Florida State University College of Law) has posted Making Punishment Safe for Democracy: A Reply to Professors Bowers, Cahill & Duff (Virginia Journal Criminal Law, Vol. 1, 2012) on SSRN. Here is the abstract:
Professors Josh Bowers, Michael Cahill, and Antony Duff have each penned subtle and thoughtful response essays to my article, Retributive Justice and the Demands of Democratic Citizenship (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930443). In this essay, I try to offer some initial thoughts that I hope will adequately address their separate challenges and queries. With respect to the challenges they offer, I should say that, in a few places, I offer some concessions. In most others, however, I decline their invitations to reconsider my arguments about our moral obligations to conform to or to enforce what I call permissibly dumb but not illiberal laws. Comments on this draft are welcomed and invited.
Tuesday, November 8, 2011
Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted The State of Pretrial Detention (The State of Criminal Justice, American Bar Association, 2011) on SSRN. Here is the abstract:
While under the common law judges presumed that most defendants would be released on bail before trial, now only some defendants are guaranteed pretrial release. Historically, due process and the presumption of innocence guaranteed criminal defendants the right to release before trial unless there was a serious risk of flight. The evolution of bail law has rendered this former guarantee meaningless. Now judges use various factors to determine release based on a prediction of whether the defendant is guilty and how dangerous he will be if released pretrial. Two problems result from the new “predictive” state of pretrial detention: 1) the failure of judges to accurately predict which defendants pose a threat to the community and 2) over-detention of defendants that can safely be released.
From the Los Angeles Times:
The lawyers had to overcome an incriminating interview their client gave detectives; contend with a victim loved by millions around the globe; and deal with a series of court rulings that limited their attempts to point the finger at another possible culprit: The King of Pop himself.
Jurors were not allowed to hear evidence that Dr. Conrad Murray's defense team hoped would bolster their argument that Jackson was so drug-addled and starved for sleep that he accidentally overdosed on a surgical anesthetic as he prepared for a long-awaited comeback tour.
Argument transcript from case involving potentially exculpatory evidence and eyewitness identification
Monday, November 7, 2011
Statements regarding cert denial in capital case involving expert's opinion on correlation of race to crime
Justice Alito's statement in support of denying review, joined by Justices Scalia and Breyer, in Buck v. Thaler is here, stating that the statements "would provide a basis for reversal of petitioner's sentence if the prosecution were responsible for presenting that testimony to the jury. Justice Sotomayor's dissent from denial of cert, joined by Justice Kagan, is here.
Issue summaries are from ScotusBlog:
- Jackson v. Hobbs and Miller v. Alabama: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Sunday, November 6, 2011
University of San Diego School of Law,
Date posted to database: September 8, 2011
|2||360||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||253||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011
|4||247||The Invisible Man: How the Sex Offender Registry Results in Social Death
Elizabeth Berenguer Megale,
Barry University School of Law,
Date posted to database: October 4, 2011 [5th last week]
|5||238||Tangled Up in Law: The Jurisprudence of Bob Dylan
Michael L. Perlin,
New York Law School,
Date posted to database: September 1, 2011 [4th last week]
|6||226||Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism
Georgetown University - Law Center,
Date posted to database: September 9, 2011
|7||216||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
|8||197||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
|9||190||The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011
|10||183||The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
The George Washington University Law School,
Date posted to database: September 8, 2011