December 24, 2011
Ruce on criminal liability of banks for suspicious activity by customers
Philip J. Ruce has posted The Bank Secrecy Act: Considerations for Continuing Banking Relationships after the Filing of a Suspicious Activity Report (Quinnipiac Law Review, Vol. 30, No. 1, 2011) on SSRN. Here is the abstract:
Law enforcement has a vested interest in catching alleged money launderers. Suspicious Activity Reports (SARs) filed by financial institutions are a useful tool in this endeavor and can potentially direct law enforcement to criminal enterprises. But SARs are just that — reports of suspicious activity. A financial institution will not generally conduct a complex investigation of every SAR it files; there are far too many reports for that.
But financial institutions face a dilemma that has not been solved via the courts or academia: despite the Bank Secrecy Act (BSA) safe harbor provision, filing a SAR does not excuse a financial institution from liability for continuing to transact business with a client. The institution may in effect be aiding and abetting a criminal if it continues to transact business with an alleged money launderer. But closing the account would likely tip off the alleged wrongdoer that his or her suspicious activity has been spotted, thereby thwarting an otherwise golden opportunity for investigators.
This Article first reviews the BSA and its suspicious activity reporting requirements, as well as the safe harbor provision shielding a financial institution from liability for filing these reports. The Article reviews case-law and statutory definitions of aiding and abetting, and distinguishes “aiding and abetting” legal theory from “conspiracy.” The Article then discusses the Financial Action Task Force on Money Laundering’s relevant recommendations on bank liability for tipping off a client. The Article concludes that it is unlikely that a bank will be held liable for conducting business with a client it only suspects of criminal activity, as long as a bank has no actual knowledge of unlawful behavior. Because this difference can oftentimes be subtle, a financial institution should be careful to document these ongoing relationships and apply special due diligence when appropriate.
December 23, 2011
Klingele on The Early Demise of Early Release
Reversing the tough-on-crime policies that have defined American criminal justice for the past two decades, cash-strapped states across the nation have begun reducing the number of people they confine in prisons and jails. In their efforts to reduce correctional populations, numerous states have passed laws that allow parole boards, prison officials, or judges to shorten the sentences of people already serving time in custody. These so-called "early release" laws have proven highly controversial, and in at least three states have been repealed outright. In others, they remain on the books but have provided less savings than anticipated because of the failure of decision-makers to utilize their newly-conferred authority. This Article examines the early demise of early release in several jurisdictions, identifying practical, political, and moral obstacles to the practice of early release that may account for the failure of recent legislation. Responding to those concerns, I suggest principles to guide future efforts to reduce custodial populations through the use of early release. These include drafting laws that respect the limits of institutional capacity, adopting principled rules about who may be released early and for what reasons, and emphasizing the moral concerns that justify efforts to reduce prison populations.
December 22, 2011
Allen on corporate criminal liability for maritime negligence
Craig H. Allen (University of Washington - School of Law) has posted Proving Corporate Criminal Liability for Negligence in Vessel Management and Operations: An Allision-Oil Spill Case Study on SSRN. Here is the abstract:
Maritime policy analysts often invoke the 'vessel safety net' metaphor to explain the independent but overlapping risk management roles and responsibilities of the vessel master and crew, owner and charterer, operating company, classification society, flag state and port states. Oil spills from the 2002 M/T Prestige break up off the coast of Galicia, Spain, the 2007 M/V Cosco Busan bridge allision in San Francisco Bay and the 2010 Deepwater Horizon debacle in the Gulf of Mexico, among others, demonstrate that any or all of the components of that safety net may come under scrutiny following a marine casualty, possibly leading to civil and even criminal liability.
It now seems clear that criminal liability for the harm caused by a marine casualty can extend beyond those on board the vessels who might have been guilty of 'operational negligence.' This article examines one particular aspect of the emerging development: the potential criminal liability of the vessel owner or operator, typically a corporation, for a discharge of oil in violation of the Clean Water Act. Recent cases have demonstrated that the owner’s or operator’s criminal liability may be based on either vicarious liability for the criminal acts of a mariner employed by the owner or operator or on a direct liability theory. Civil liability based on vicarious liability is nothing new. But vicarious criminal liability remains somewhat controversial. However, because vicarious criminal liability - if permitted under the governing law - is relatively easy to establish, this article will only briefly examine the duties relevant to a vicarious liability theory before turning to the alternative direct liability theory for what some refer to as 'negligent management.' It does so by examining the possible means by which the direct criminal liability of the operator of the Cosco Busan might have been established if the operator had not pled guilty and the case had gone to trial.
Alderman on Incarceration on the Ordinary Family
Kimberly Alderman (University of Wisconsin Law School) has posted The Long Arm of the Law: Incarceration and the Ordinary Family (Howard Law Journal, 2011) on SSRN. Here is the abstract:
This Article examines how the ordinary family uses popular narratives about the criminal justice system to cope with and reconcile the increasing intrusion of the system into the family experience. It explores these narratives in the context of a morality play, discussing common perceptions about the court, law enforcement, criminals, and the law itself, as reflected through dramatic television shows and movies. The Article argues that these narratives cultivate a common bond that crosses race and class, giving ordinary families a common enemy: a dysfunctional criminal justice system that systematically overpunishes and overincarcerates.
December 21, 2011
Farber on Parental Consent to Searches
Hillary B. Farber (University of Massachusetts School of Law ) has posted A Parent’s 'Apparent' Authority: Why Intergenerational Coresidence Requires a Reassessment of Parental Consent to Search Adult Children’s Bedrooms (Cornell Journal of Law and Public Policy, Vol. 21, No. 1, p. 39, 2011) on SSRN. Here is the abstract:
For most of the last century, the structure of the American family shifted from a multigenerational model to a nuclear one. However, since the 1980s, the pendulum has shifted back. This shift has been especially acute for the younger generation — aged 25 to 34 — who have been hurt by the economic downturn in 2008; one in five of these adults now live in a multigenerational household. Despite this demographic shift, Fourth Amendment apparent authority doctrine has not adapted to take account of these changes.
Apparent authority doctrine validates, under certain circumstances, an otherwise unlawful search on the basis of a third party’s consent. The doctrine reached its current genesis in Georgia v. Randolph, where the Court took account of “customary social understanding” in determining whether third party consent validated a police search. Premised on the traditional presumption of parental authority, police rely upon parental consent to search a premises shared by the parent and the child — even if the child is an adult, with her own expectations of privacy. In light of Randoph’s reliance on social customs, apparent authority doctrine can and should evolve to account for adult children in multigenerational households.
The proliferation of multigenerational U.S. households provides a new perspective on the social customs and practices concerning coresidence in the United States. Rather than relying outdated presumptions of parental control, this Article argues that police should be compelled to conduct a more thorough inquiry before searching areas occupied exclusively by the adult child. Police should differentiate between “common” and private areas, and inquire into any agreements — formal or informal — that the parent and child may have regarding access and control over such areas. By fully recognizing the changing nature of the American household and rejecting a bare reliance on a presumption of parental control, parents and adult children alike will be afforded the Fourth Amendment protection that they deserve.
Ex Post Facto and Due Process brief seeking signatures from criminal law scholars
From Justin Marceau (Denver Law):
We are writing a brief in support of certiorari in a capital case out of the 10th Circuit. The brief will be filed on behalf of interested criminal law and constitutional law scholars and we are looking for persons who might be willing to join the brief in this capacity. The short version of the facts are:
(1) The defendant, Michael Selsor, was convicted of capital murder in Oklahoma in 1976.
(2) The capital sentencing scheme under which Selsor was convicted was soon after declared unconstitutional. The state supreme court announced that all persons serving death sentences under that system must be sentenced to life, notwithstanding the enactment of a new death penalty statute - persons sentenced under the old statute were thus ineligible for death because they could not be re-sentenced under the amended statute.
(3) Relying on this precedent establishing that a life sentence was his maximum sentence, the defendant sought and obtained federal habeas relief.
(4) On remand, the state not only re-prosecuted Selsor but sought the death penalty - despite the Oklahoma precedent, unchallenged for 20 years, that death was not available in a case like Selsor’s. The Oklahoma courts reversed the prior decision invalidating the prior death penalty law and applied that ruling retroactively to Selsor’s case. He was, in short, sentenced to death after obtaining a retrial that he sought on reasonable reliance on the law holding that he was ineligible for death.
The amicus brief argues that due process cannot countenance such a ruling. Specifically, the focus of the brief is that the 10th Circuit's dismissal of Selsor's appeal resulted from an improper conflation of the ex post facto and due process protections. The brief explains that ex post facto protections, while generally more robust, do not apply here, but that reliance interests protected by due process preclude the retroactive application of the death penalty in this case.
If you are interested in reviewing the brief and potentially joining it, please send an email to Justin Marceau, email@example.com<mailto:firstname.lastname@example.org>.
December 20, 2011
Murphy on the Romney Death Penalty Act
Russell G. Murphy (Suffolk University Law School) has posted Execution Watch: Mitt Romney’s 'Foolproof' Death Penalty Act and the Politics of Capital Punishment
(Suffolk University Law Review, Vol. 45, p. 1, 2011) on SSRN. Here is the abstract:
This article presents a legal and political analysis of the 2003 - 2005 effort of Governor Mitt Romney to make the death penalty available as a sentencing option in Massachusetts. It begins with a description of the history of capital punishment in the state as context for Mr. Romney’s creation of the Governor’s Council on Capital Punishment. The Council’s mandate, recommendations, and Final Report are set forth, followed by a summary of proposed legislation based thereon. Public, media, and academic reactions to the Governor’s plan are the basis for an analysis of the political implications of this undertaking, framed by the question “Was Governor Romney primarily interested in making good public policy or in advancing his political ambitions to be President of the United States?” The article then takes an objective look at the merits of the Romney plan in terms of current understandings about the practice and policy of capital punishment in the United States. With the defeat of the Romney bill and the strength of the legislative rejection of the death penalty in Massachusetts as a backdrop, the article concludes with a focus on what this process teaches about Mr. Romney’s governing style and the strength of his political beliefs.
Jochnowitz on Capital Jurors and Mitigating Evidence
Leona Deborah Jochnowitz has posted How Capital Jurors Respond to Mitigating Evidence of Defendant's Mental Illness, Retardation, and Situational Impairments: An Analysis of the Legal and Social Science Literature (Criminal Law Bulletin, Vol. 47, No. 5, p. 839, 2011) on SSRN. Here is the abstract:
This article provides a historical review and analysis of the legal and empirical literature regarding capital juror decision-making, focusing on how capital jurors respond to mitigating factors of mental health, cognitive, and situational impairments. The level of juror receptivity to mental evidence is explained through the perspective of various theories of capital juror decision-making. This article draws upon the precedents of the first contemporary systematic jury studies of the 1950s conducted by Chicago Jury Project researchers. It explores methodologies used to investigate juror decision-making. It analyzes studies on the effectiveness of mental health defenses in criminal trials, a subtopic of the jury research. It focuses on findings of the Capital Jury Project I, which furthered capital jury research through post-trial interviews with actual jurors in the 1990's. Thus, this article imparts a better understanding of how jurors perceive a defendant's extenuating mental disabilities, which may be also stigmatizing and aggravating.
December 19, 2011
Wolff on Cost, Recidivism, and Justice
Michael A. Wolff (Saint Louis University - School of Law) has posted Missouri Provides Cost of Sentences and Recidivism Data: What Does Cost Have to Do with Justice? (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
The Missouri Sentencing Advisory Commission in 2010, which has an information-based sentencing information system, added two items of information to its Web-based Automated Sentencing Information feature: (1) the cost of each sentencing option and (2) the recidivism rate for offenders – with similar risk factors – who received sentences for the same offense or category of offenses. Because sentencing decisions in Missouri are discretionary, judges are free to use or to disregard the information. For many offenses, however, it is possible for an advocate to argue or for a judge (or the public) to conclude that a more harsh sentence not only may cost more, but may be followed by a higher rate of re-offending than a less severe punishment.
Cohen on Circumvention Tourism
Under what circumstances should a citizen be able to avoid the penalties set by his or her home country’s criminal law by going abroad to engage in the same activity in a place where it is not criminally prohibited? Should we view the ability to engage in prohibited activities by traveling outside of the nation state as a way of accommodating cultural or political differences within our polity?
These are general questions regarding the power and theory of extraterritorial application of domestic criminal law. In this Article, I examine the issues through a close exploration of one setting that urgently presents them: medical tourism.
Medical tourism – the travel of patients who are citizens and residents of one country, the 'home country,' to another country, the 'destination country,' for medical treatment – is a growing multi-billion dollar industry involving thousands of patients each year from the United States alone. This Article is the first to comprehensively examine a sub-category of medical tourism I call 'circumvention tourism,' involving patients who travel abroad for services that are legal in the patient’s destination country but illegal in the patient’s home country; that is, travel to circumvent domestic prohibitions on accessing certain medical services. The four examples of this phenomenon that I dwell on are circumvention medical tourism for abortion, Female Genital Cutting (FGC), assisted suicide, and reproductive technology usage.
I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?
Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.
I also discuss the ways in which this analysis can serve as scaffolding for a more general theory of circumvention tourism.
This Article is the third in a trilogy of law review articles I have done on various aspects of Medical Tourism. The first Article, Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument, 95 Iowa L. Rev. 1467 (2010) is available at http://ssrn.com/abstract=1523701. The second Article, Medical Tourism, Access to Health Care, and Global Justice, 52 Virg. J. Int'l L. 1 (2011), is available at http://ssrn.com/abstract=1926880.
December 18, 2011
Top-Ten Recent SSRN Downloads
|1||281||Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
Yale University - Law School,
Date posted to database: November 29, 2011
|2||259||A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: October 20, 2011
|3||242||Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis
Wouter P. J. Wils,
Date posted to database: November 9, 2011
|4||181||Foreign Corrupt Practices Act Fundamentals
The George Washington University Law School,
Date posted to database: September 6, 2011
|5||165||Marriage as Punishment
Melissa E. Murray,
University of California, Berkeley - School of Law,
Date posted to database: November 2, 2011
Adam J. Kolber,
Brooklyn Law School,
Date posted to database: October 17, 2011
|7||122||Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force
Susan W. Brenner,
University of Dayton - School of Law,
Date posted to database: October 29, 2011
|8||117||Neuroscience, Normativity, and Retributivism
Michael S. Pardo, Dennis Patterson,
University of Alabama School of Law, European University Institute,
Date posted to database: December 6, 2011
|9||102||Do They Do It for the Money?
Utpal Bhattacharya , Cassandra D. Marshall,
Indiana University Bloomington - Department of Finance, University of Richmond - Department of Finance,
Date posted to database: November 9, 2011
|10||91||Adoption of the Responsibility to Protect
William W. Burke-White,
University of Pennsylvania - Law School - Faculty,
Date posted to database: November 16, 2011