CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, December 31, 2011

Amicus brief in case exploring relationship between due process and ex post facto clauses

The brief submitted by Eric Freedman (Hofstra) and Justin Marceau (Denver) and signed by several law professors is attached.Download Selsor Amicus Final

December 31, 2011 | Permalink | Comments (0)

Taslitz on Mass Incarceration

Andrew E. Taslitz (Howard University - School of Law)

Andrew E. Taslitz (Howard University - School of Law) has posted The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration (Ohio State Journal of Criminal Law, Vol. 9, p. 133, 2011) on SSRN.  Here is the abstract: 

This article argues that a failure to embrace a particular form of governance, "populist deliberative democracy" (PDD), likely contributes to the rise and persistence of mass incarceration in the United States. The article relies on varied converging sources of data. First, the article examines international data, comparing degrees of PDD to incarceration rates in a variety of countries. Second, the article explores interstate data, finding that states with greater PDD have lower incarceration rates. Third, the article examines intrastate data, concluding that city councils in racially-diverse localities have higher PDD and less of a commitment to mass incarceration than do less racially-diverse state and federal legislatures. Fourth, the piece reviews "democratic social science" showing that higher PDD reduces individuals' and groups' willingness to embrace mass incarceration. Finally, the article explores happiness studies, suggesting that PDD raises happiness, which in turn raises empathy for those different from us; reduces an embrace of retributive, incarceration-prone justice; and increases the allure of therapeutic justice. Happiness should also contribute to lower crime rates. The article concludes that, though society-wide American commitment to PDD is likely to remain weak, even smaller, more modest PDD-like reforms within the criminal justice arena might make at least some small contribution to reducing mass incarceration as the ruling paradigm.

December 31, 2011 | Permalink | Comments (0)

Friday, December 30, 2011

Buell on Corporate Civil and Criminal Liability

Samuel W. Buell (Duke University School of Law)

Samuel W. Buell (Duke University School of Law) has posted Potentially Perverse Effects of Corporate Civil Liability (PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT, Anthony S. Barkow, Rachel E. Barkow, eds., NYU Press, 2011) on SSRN. Here is the abstract: 

Inadequate civil regulatory liability can be an incentive for public enforcers to pursue criminal cases against firms. This incentive is undesirable in a scheme with overlapping forms of liability that is meant to treat most cases of wrongdoing civilly and to reserve the criminal remedy for the few most serious institutional delicts. This effect appears to exist in the current scheme of liability for securities law violations, and may be present in other regulatory structures as well. In this chapter for a volume on "Prosecutors in the Boardroom," I argue that enhancements of the SEC's enforcement processes likely would reduce the frequency of DOJ criminal enforcement against firms, an objective shared by many. Among other enforcement features, I address problems with the practice of accepting "neither admit nor deny" settlements in enforcement actions, a subject that has drawn greater attention since this chapter was published.

December 30, 2011 | Permalink | Comments (0)

O'Hear on Good Time Programs in the American Penal System

Michael M. O'Hear (Marquette University - Law School)

Michael M. O'Hear (Marquette University - Law School) has posted Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early (Wisconsin Law Review, Forthcoming) on SRRN.  Here is the abstract: 

Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior. 

Written a generation ago, the leading scholarly article on the subject presented a strong case against good time, which has yet to be effectively addressed. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct — credits can be denied or withdrawn as a penalty for violations of prison rules — the article questioned how it could possibly be just to impose additional incarceration based on mere violations of administrative regulations.

Continue reading

December 30, 2011 | Permalink | Comments (0)

Tuesday, December 27, 2011

Pardo & Patterson on Neuroscience, Normativity, and Retributivism

Pardo michaelMichael S. Pardo (pictured) and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Neuroscience, Normativity, and Retributivism (THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

Advocates for the increased use of neuroscience in law have made bold and provocative claims about the power of neuroscientific discoveries to transform the criminal law in ways large and small. Perhaps the boldest and most provocative of these claims are made in an influential article by Joshua Greene and Jonathan Cohen. They claim that neuroscience will reveal that criminal defendants are not morally responsible for their actions and that this revelation will thereby undermine retributivist justifications for criminal punishment. In the process of resolving previously intractable debates between consequentialism and retributivism, neuroscience will also, they contend, resolve age-old debates about free will. In this essay, we discuss several serious problems with their argument. We maintain that no neuroscientific discoveries will lead to the sorts of changes predicted by Greene and Cohen and, even if they did, those changes would not be the product of neuroscientific insight but result from unwarranted and problematic inferences which ought to be resisted.

December 27, 2011 | Permalink | Comments (0)

Monday, December 26, 2011

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 304 Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
James Forman,
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
3 257 Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis
Wouter P. J. Wils,
European Commission,
Date posted to database: November 9, 2011
4 188 Foreign Corrupt Practices Act Fundamentals
Jessica Tillipman,
The George Washington University Law School,
Date posted to database: September 6, 2011
5 172 Marriage as Punishment
Melissa E. Murray,
University of California, Berkeley - School of Law,
Date posted to database: November 2, 2011
6 133 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 [7th last week]
7 127 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 [8th last week]
8 125 Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language
Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein,
Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 16, 2011 [new to top ten] 
9 118 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
Last Revised: November 18, 2011
10 98 Adoption of the Responsibility to Protect
William W. Burke-White,
University of Pennsylvania - Law School - Faculty,
Date posted to database: November 16, 2011
Last Revised: November 16, 2011

December 26, 2011 | Permalink | Comments (0)