Thursday, October 25, 2012
Christopher Rutledge Jones has posted 'EyePhones': A Fourth Amendment Inquiry into Mobile Iris Scanning (South Carolina Law Review, Vol. 63, No. 925, 2012) on SSRN. Here is the abstract:
MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows the user to perform mobile iris scanning, fingerprinting, and facial recognition. Developed by BI2 Technologies, this device was recently made available to law enforcement agencies in America.
This article discusses the Fourth Amendment implications arising from the use of such a device, and asks whether a reasonable expectation of privacy exists in one's irises while in public spaces. The article explores past Supreme Court Fourth Amendment jurisprudence regarding the use of technology to enhance senses, abandonment, and the plain view doctrine in an attempt to determine when mobile iris scans would and would not be allowed by the Fourth Amendment.
Emad Hanzala Atiq has posted The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Do recent results in neuroscience and psychology, that portray our choices as predetermined, threaten to undermine the assumptions about “free will” that drive criminal law? This Article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely-held folk beliefs about free will, beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation – a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.
Andrew V. Papachristos and Chris M. Smith (Yale University - Department of Sociology and University of Massachusetts at Amherst, College of Social and Behavioral Sciences - Department of Sociology) have posted The Small World of Al Capone: The Embedded and Multiplex Nature of Organized Crime on SSRN. Here is the abstract:
Organized crime groups may or may not have some criteria for membership, but organized criminal activities seep into the legitimate spheres of society. We argue that it is at the boundaries of the underworld and the upper world where crime gets organized. Layers of embedded and multiplex relationships between criminals and non-criminals comprise Chicago’s Prohibition era organized crime network. This study draws a sample from our unique relational “Capone Dataset” on early 1900s Chicago crime, which we began compiling in 2008 from six archival sources. Using formal social network analysis techniques, this study explores an organized crime network of more than 4,000 relationships between 1,400 individuals. Our stepwise analysis moves from a bounded group of members of Al Capone’s Syndicate, to an embedded and multiplex network spanning criminal, personal, and legitimate spheres, to a small world graph test using simulated random and ERGM networks. We find that an organized crime network conceptualization that includes multiplex and embedded relationships beyond gang membership provides a more accurate and provocative picture of organized crime and has the properties of small world graphs. These findings have implications for future studies of organized crime networks, corruption, resilience, and vulnerability.
Wednesday, October 24, 2012
Marcia Johnson (pictured) and Luckett Anthony Johnson (Texas Southern University - Thurgood Marshall School of Law and affiliation not provided to SSRN) have posted Bail: Reforming Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County, Texas (Northwestern Journal of Law & Social Policy, Volume 7, Issue 1, Winter 2012) on SSRN. Here is the abstract:
Starting in the 1970s, the U.S. federal government and many state and local governments adopted “get tough” policies against crime. These new strict policy initiatives produced an explosion of incarceration in prisons throughout the country. They also impacted local jails as well, particularly in the numbers of persons detained pre-trial. This Article explores this phenomenon and its implications for local governments, as well as its unforeseen consequences on communities, particularly communities of color. The Article uses Harris County, Texas to exemplify the systematic problems resulting from the over-jailing of its citizens, particularly persons who are detained pre-trial. We attempt to show that with some changes to local policies and the development of new initiatives, Harris County could substantially reduce its jail population without increasing crime, at a substantial savings to the county in both monetary and human capital.
Stephen I. Vladeck (American University - Washington College of Law) has posted The Civilianization of Military Jurisdiction (THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW IN AMERICA, John T. Parry, Song Richardson, eds., Cambridge University Press, 2013) on SSRN. Here is the abstract:
Most discussions of current and future issues in American criminal law and procedure tend to ignore completely the role of the military in shaping that body of jurisprudence. Perhaps this lacuna reflects widespread - if tacit - acceptance of the maxim that 'military law is to law as military music is to music.' Or it may represent generations of lawyers inculcated with Justice Black’s oft-quoted characterization of the U.S. court-martial system as a 'rough form of justice.' Regardless, the assumption appears to be that there is little for true criminal law scholars to learn from judicial proceedings presided over by jurists - and juries - in uniform.
Tuesday, October 23, 2012
Dylan O. Keenan has posted Confronting Crawford v. Washington in the Lower Courts (Yale Law Journal, Vol. 122, 2012) on SSRN. Here is the abstract:
Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique with empirical evidence by presenting results from the first statistical analysis of post-Crawford Confrontation Clause cases. The results show that lower courts have emphasized two factors — the presence of a state actor and the presence of an injured party — to evaluate whether a statement is testimonial under Crawford. I then argue that these results are not ambiguous or contradictory but consistent with Crawford’s reasoning and the underlying purposes of the Confrontation Clause.
Ryan M. Rodenberg and Anastasios Kaburakis (Florida State University and Saint Louis University - John Cook School of Business - Department of Management) have posted Legal and Corruption Issues in Sports Gambling (Journal of Legal Aspects of Sport, 2013, Forthcoming) on SSRN. Here is the abstract:
On April 15, 2011, the federal government shut down the three largest online poker sites servicing the American market – Full Tilt Poker, PokerStars, and Absolute Poker/Ultimate Bet. The shutdown was subsequently labeled Black Friday in the mainstream press. In addition to seizing the assets of each of the aforementioned online poker operators, each affiliated website included stern notices from the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) informing visitors that certain gambling is illegal under federal law. Less than two months later, the online sports gambling industry was also subject to a federal-level enforcement action dubbed Blue Monday.
Monday, October 22, 2012
Last year, I posted here and here about the manslaughter charges against Italian seismologists for failing to predict and adequately warn the public about the risk of an earthquake in the L'Aquila region of central Italy. There were some tremors in the area, but the seismologists did not predict it would lead to an imminent, major earthquake. There was, in fact, an earthquake in April 2009 that led to the deaths of over 300 people.
La Repubblica, the popular Italian newspaper, reports that the verdict affects seven members of the "Committee on Major risks" who were in office in 2009, and confirms the charges that they "provided false information" about the improbability of a strong seismic event on the night of April 6, 2009, which led to the deaths of 309 citizens. Prosecutors had asked for four years in prison, but a higher sentence of 6 was given. There's a video report here, but in Italian. The Telegraph notes that the scientists will also have to pay for the prosecution's legal costs. The decision is expected to create a profound chilling effect for scientists in Italy.
These results are surprising to say the least. I think the mainstream media in the U.S. will soon be paying a lot more attention to this case.
UPDATE: And speaking of liability for earthquakes, see this news report about how drilling for water in southern Spain may have contributed to the severity of an earthquake there last year.
|1||451||The Curious History of Fourth Amendment Searches
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: October 1, 2012 [2nd last week]
|2||306||Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart's Potential Exposure
Southern Illinois University School of Law,
Date posted to database: September 13, 2012 [3rd last week]
|3||259||Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research
Keith A. Findley,
University of Wisconsin Law School,
Date posted to database: October 11, 2012 [new to top ten]
|4||183||'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures
Gary S. Becker, Francois Ewald,Bernard E. Harcourt,
University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago - Department of Political Science,
Date posted to database: September 5, 2012 [6th last week]
|5||180||Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century
Southern District of Texas,
Date posted to database: August 21, 2012
|6||157||Standing Up for Mr. Nesbitt
Stephen W. Smith,
Texas Southern University - Thurgood Marshall School of Law,
Date posted to database: September 8, 2012 [7th last week]
|7||150||Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide
Daniel D. Langleben, Jane Campbell Moriarty,
University of Pennsylvania - School of Medicine, Duquesne University - School of Law,
Date posted to database: September 1, 2012 [new to top ten]
|8||137||Social Networks and Risk of Homicide Victimization in an African American Community
Andrew V. Papachristos, Christopher Wildeman,
Yale University - Department of Sociology, Yale University - Department of Sociology,
Date posted to database: September 19, 2012 [10th last week]
|9||125||Judith Shklar on the Philosophy of International Criminal Law
Date posted to database: September 20, 2012 [new to top ten]
University of Chicago Law School,
Date posted to database: August 30, 2012 [new to top ten]
Saturday, October 20, 2012
From Crime & Consequences:
Part of the concern is that kids are being diagnosed with bipolar disorder when they don't have it and given drugs that don't do any good. Trimming back on the rampantly overdiagnosed bipolar disorder would be a good thing overall. The problem, as all of us involved in criminal law know from long experience, is that any new diagnosis that is plausibly related to misbehavior will be seized upon as an excuse, misdiagnosed in people who do not have it for the purpose of evading deserved punishment for voluntary acts.
I think this is the correct ruling. A defendant raising self-defense may introduce evidence regarding a victim's reputation for a particular character trait like violence to show that the defendant was not the initial aggressor, even if the defendant did not previously know about the victim's reputation.
Friday, October 19, 2012
Yale Kamisar (University of San Diego School of Law) has posted The Rise, Decline and Fall (?) of Miranda (Washington Law Review, Vol. 87, No. 4, December 2012) on SSRN. Here is the abstract:
Miranda v. Arizona (1966) was the centerpiece of the Warren Court’s so-called revolution in American criminal procedure. But the Warren Court disbanded more than 40 years ago. And President Richard Nixon, who campaigned against the Warren Court, made four appointments to the U.S. Supreme Court.
Since then, led over the decades by Warren Burger, William Rehnquist and Antonin Scalia, the Court has seriously weakened Miranda in various ways. A good example is Berghuis v. Thompkins (2010), which allows the police to obtain a waiver of a custodial suspect’s rights after they have started to interrogate him.
Thursday, October 18, 2012
The UN Working Group on discrimination against women [official website] on Thursday urged governments around the world to repeal laws that criminalize adultery[statement] and give rise to severe penalties which include flogging, death by stoning and hanging. While the working group conceded that "adultery may constitute a valid ground for bringing a civil proceeding" in some cultures and traditions, the assembly of individual experts wholly declared [press release] that such an offense should not be deemed criminal.
From The New York Times:
For more than a year, the police have been investigating reports that the local Zumba instructor was using her exercise studio on a quaint downtown street for more than fitness training. In fact, the police say, she was running a one-woman brothel with up to 150 clients and secretly videotaping them as they engaged in intimate acts.
. . .
The case is somewhat complicated. The police say that by videotaping her clients, Alexis Wright, 29, the Zumba instructor, invaded their privacy and that the clients, in addition to being suspected perpetrators, are also thus victims.
That led to a convoluted court ruling that the names of the clients would be released but without further identifying information, like their addresses or dates of birth.
Kimberly Ferzan has posted Professor Tadros' Wild Ride: Duty, Defense, Deterrence and the Criminal Law on Jotwell. In part:
Tadros started this book as a book on retributivism, and when he began writing, he visited a prison. And, seeing that stark, desolate, and sobering institution, Tadros sought to write a book that could justify to the incarcerated the suffering we impose on them. Tadros has put his agile, analytical mind to work to solve a problem that should be of central concern to all of us. And in that spirit, his work should be read and celebrated.
Hadar Dancig-Rosenberg and Tali Gal (Bar-Ilan University - Faculty of Law and School of Criminology, University of Haifa) has posted Restorative Criminal Justice (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
This Essay develops a model that integrates restorative justice within the conventional punitive system of criminal responsibility and punishment. Contrary to the conventional wisdom, we demonstrate that restorative justice should form a synergy with retributivism, deterrence, incapacitation, and other punitive goals of criminal law. We show how this synergy can be formed, illustrate its operation and identify its potential contribution to social welfare.
Keith A. Findley (University of Wisconsin Law School) has posted Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research (Oklahoma City University Law Review, Vol. 37, No. 2, 2012) on SSRN. Here is the abstract:
This is the text of a talk given by Keith Findley as part of the Integris Law & Medicine Lecture Series at Oklahoma City University School of Law on September 27, 2011, with commentary by Dr. Patrick Barnes, Professor David Moran, and Professor Carrie Sperling. The talks address controversies that have arisen in the past ten or twelve years over the diagnosis Shaken Baby Syndrome (SBS) (now known also more expansively as Abusive Head Trauma (AHT)) and prosecution of individuals based on the hypothesis that the child was injured or died after an adult caregiver violently shook the child. The talks examine the science-dependent nature of prosecutions (or child removal actions) based on the shaking hypothesis, as well as emerging controversies from new medical research about whether shaking can cause such injuries and death, at least without causing extensive neck and cervical spine injuries; whether the indicators previously attributed almost exclusively to shaking -- such as subdural hematomas and retinal hemorrhages -- are indeed diagnostic of abuse; whether other causes, both natural and accidental, can mimic abuse and lead medical professionals astray; and whether the onset of clear neurological impairment can reliably be timed to the infliction of injuries so that the medical science can be used to identity the perpetrator (assuming there was one). This talk examines how the legal system is being called upon to re-examine SBS convictions in light of this evolving medical science.
Wednesday, October 17, 2012
Ryan W. Scott (Indiana University Maurer School of Law) has posted The Skeptic's Guide to Information Sharing at Sentencing (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.
Jan M. Smits , Andrei Ernst , Steven Iseger and Nida Riaz (Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) , affiliation not provided to SSRN , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law on SSRN. Here is the abstract:
This article investigates how the law is perceived in hip-hop music. Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from 5 US artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz). After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.