Tuesday, November 20, 2012
From the New York Times:
Under the new ordinance, public nudity will be subject to a series of fines. A first-time violation would result in a fine of up to $100. A second citation in the same year would cost up to $200, and a third would result in a fine of up to $500 or a misdemeanor and up to one year in jail.
. . .
As long as it is not lewd or offensive, public nudity is legal under state law. But on Tuesday, San Francisco joined many other cities that prohibit it, including nearby San Jose and Berkeley.
. . .
Preschoolers can still go bare, women can still go topless and public nudity will continue to be allowed at events permitted by the city, including the annual gay pride parade and the Folsom Street Fair, a street party billed as the largest leather and fetish event in the world.
Brigitte Bouhours and Roderic Broadhurst (Australian National University (ANU) and Australian National University (ANU)) have posted Violence Against Women in Hong Kong: Results of the International Violence Against Women Survey on SSRN. Here is the abstract:
The International Violence Against Women Survey (IVAWS) was conducted in Hong Kong in 2006 and nearly 1,300 women took part in the telephone survey. One in five respondents experienced at least one incident of violence since age 16. Sexual violence (13.4%) was more frequently reported than physical violence (11.7%). Women were more likely to be abused by intimate partners and other known men (13.5%) than by strangers (8%). Compared to other countries surveyed by the IVAWS, Hong Kong recorded among the lowest rates of violence by both intimate partners and non-partners. These results suggest that cultural influences linked to the interaction of modernization and some protective factors found in the adherence to traditional Chinese values may be at play.
Victor Tadros (University of Warwick - School of Law) has posted Punishment and Duty (Chapter 12 'The Ends of Harm: The Moral Foundations of Criminal Law' (OUP, 2011)) on SSRN. Here is the abstract:
This chapter defends the Duty View of punishment. According to this view, the permissibility of punishing offenders for reasons of general deterrence are grounded in the enforceable duties that offenders incur as a result of their wrongdoing. This view is defended by examining the relationship between self-defence, compensatory harm, and punishment. The chapter aims to demonstrate that the main differences between self-defence and punishment do not provide morally compelling reasons against punishing offenders on defensive grounds. Harming offenders as a means to avert threats posed by others can be justified in virtue of the duties that offenders owe to their victims - duties that they incur by wronging their victims.
Monday, November 19, 2012
Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Teaching Prison Law (62 Journal of Legal Education 218 (2012)) on SSRN. Here is the abstract:
To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.
Ira P. Robbins (American University - Washington College of Law) has posted 'Bad Juror' Lists and the Prosecutor's Duty to Disclose (Cornell Journal of Law and Public Policy, Vol. 22, No. 1, 2012) on SSRN. Here is the abstract:
Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts.
This Article addresses the prosecutor’s duty to disclose bad-juror lists.
Sunday, November 18, 2012
|1||546||The Curious History of Fourth Amendment Searches
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: October 1, 2012
|2||366||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 [3rd last week]
|3||211||Prison Visitation Policies: A Fifty State Survey
Chesa Boudin, Trevor Stutz, Aaron Littman,
Yale University - Law School, Yale University - Law School, Yale University - Law School,
Date posted to database: November 6, 2012 [new to top ten]
|4||203||The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law
Emad Hanzala Atiq,
Yale University, Law School,
Date posted to database: October 18, 2012
|5||165||Standing Up for Mr. Nesbitt
Stephen W. Smith,
Texas Southern University - Thurgood Marshall School of Law,
Date posted to database: September 8, 2012
|6||163||Judith Shklar on the Philosophy of International Criminal Law
Date posted to database: September 20, 2012
|7||154||If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law
Jan M. Smits, Andrei Ernst, Steven Iseger, Nida Riaz,
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI), Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: October 10, 2012 [10th last week]
|8||152||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 [7th last week]
|9||152||Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases
New England Law | Boston,
Date posted to database: October 2, 2012
James G. Stewart,
University of British Columbia (UBC) - Faculty of Law,
Date posted to database: September 26, 2012 [new to top ten]
Saturday, November 17, 2012
Dave Bewley Taylor and Christopher Hallam (International Drug Policy Consortium (IDPC) and International Drug Policy Consortium (IDPC)) have posted IDPC Response to the UNODC World Drug Report 2012 on SSRN. Here is the abstract:
26 June 2012 saw the launch of the United Nations Office on Drugs and Crime (UNODC)’s flagship publication, the World Drug Report.
This IDPC response provides an overview of the data and topics presented in the Report and where appropriate, within the broader context of the current state of the UN drug control framework, offer a critical analysis of both.
Friday, November 16, 2012
From the New York Times:
“What people don’t realize is that hacking and spying went mainstream a decade ago,” said Dan Kaminsky, an Internet security researcher. “They think hacking is some difficult thing. Meanwhile, everyone is reading everyone else’s e-mails — girlfriends are reading boyfriends’, bosses are reading employees’ — because it’s just so easy to do.”
. . .
E-mail providers like Google and Yahoo keep login records, which reveal I.P. addresses, for 18 months, during which they can easily be subpoenaed. The Fourth Amendment requires the authorities to get a warrant from a judge to search physical property. Rules governing e-mail searches are far more lax: Under the 1986 Electronic Communications Privacy Act, a warrant is not required for e-mails six months old or older. Even if e-mails are more recent, the federal government needs a search warrant only for “unopened” e-mail, according to the Department of Justice’s manual for electronic searches. The rest requires only a subpoena.
The article goes on to explore alternatives that might enhance security.
Matthew Textor has filed United States V. Liddell: 8th Circuit Precedent at the Forefront of the Circuit Split Over the Quarles Public Safety Exception on SSRN. Here is the abstract:
The Eighth Circuit case of United States v. Liddell established a broader perspective of the 'public safety exception' to the Miranda requirement, which should be adopted universally. In Liddell, the court decided the Miranda requirement did not apply and allowed statements made by a suspect prior to his Miranda warning into evidence. The Liddell court held a sufficient public safety basis existed when there was a risk of police officers being injured from the mishandling of unknown firearms or drug paraphernalia. Specifically, the Liddell court allowed the police to ask a suspect, who had been arrested and secured, whether there were weapons or contraband in the car or apartment the police were about to search. In determining the outcome, the court broadened the existing exception to Miranda as established by the United States Supreme Court 28 years ago in the case of New York v. Quarles.
Michal Gilad has posted Who Will Protect the Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs (Whittier J. Child & Family Advocate, 2012, Forthcoming) on SSRN. Here is the abstract:
The juvenile justice system was designed with the special needs of minors in mind. However, on every given day, children and youths interact with the criminal justice system under countless different circumstances, beyond the boundaries of the juvenile justice system. The inclusion of unaccompanied juveniles in witness protection programs is only one of the less commonly explored such interactions. This article is the first scholarly piece to peek into the secretive world of witness protection, to identify the unique challenges associated with the protection of unaccompanied minor witnesses. Using authentic case-studies and invaluable insights of practitioners in the field, it provides an in-depth interdisciplinary analysis of the legal, social, psychological and developmental factors that affect the protection of adolescents. Thus, the article provides a comprehensive basis for policy decisions that facilitate the effective protection of minor witnesses, who are a vital element in the prosecution of serious felonies threatening public safety. More broadly, it can inform policy makers about the unique characteristics of juveniles, and the urgent importance of adapting criminal justice policies, beyond the criminal justice system, to their special needs, in order to increase efficacy.
Thursday, November 15, 2012
David H. Kaye (Pennsylvania State University - Law School) has posted Beyond Uniqueness: The Birthday Paradox, Source Attribution, and Individualization in Forensic Science Testimony (Law, Probability & Risk, November 2012) on SSRN. Here is the abstract:
For many decades, forensic science identification experts have insisted that they can ‘individualize’ traces such as fingerprints and toolmarks to the one and only one object that produced them. They have relied on a theory of global uniqueness of patterns as the basis for such individualization. Although forensic practitioners and theorists are moving toward a more probabilistic understanding of pattern matching, textbooks and reference works continue to assert that uniqueness justifies individualization and that experience demonstrates discernible uniqueness. One response to the last claim applies a famous problem in probability theory — the Birthday Problem — to the forensic realm to show that even an extensive record of uniqueness does little to prove that all such patterns are unique. This essay describes the probabilistic reasoning and its limits. It argues that the logic of the Birthday Paradox does indeed undercut the theory of global, general uniqueness, but that the reasoning is logically compatible with opinion testimony that a specific object is nearly certain to be the source of a pattern or trace. It also notes some alternatives to categorical claims of individualization, whether those claims are based on the theory of global, general uniqueness or instead on some less sweeping and more defensible theory.
Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Exclusion and Control in the Carceral State (16 Berkeley Journal of Criminal Law 259 (2011)) on SSRN. Here is the abstract:
Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.
From The New York Times:
BP, the British oil company, said Thursday that it would pay $4.5 billion in fines and other payments to the government and plead guilty to 14 criminal charges in connection with the giant oil spill in the Gulf of Mexico two years ago.
. . .
BP agreed to plead guilty to 11 felony counts of misconduct or neglect related to the deaths of 11 people in the Deepwater Horizon explosion in April 2010, which released millions of barrels of oil into the gulf over the course of the next few months.
The Justice Department also filed criminal charges against three BP employees on Thursday.
The government charged the top BP officers aboard the drilling rig, Robert Kaluza and Donald Vidrine, with manslaughter in connection with each of the men who died, alleging that they were negligent in supervising tests before the well blowout and explosion that destroyed the rig.
Prosecutors also charged BP’s former vice president for exploration in the Gulf of Mexico, David Rainey, with obstruction of Congress and making false statements about the rate at which oil was spilling from the well.
Private police assume many of the same roles as traditional law enforcement. But courts and legislatures regulate public and private police very differently. This article evaluates the statutory and judicial regulation of private police. By collecting and coding all state statutes related to the regulation of private police, I theorize on the inadequacies of the current regulatory scheme. I show that most state statutes only regulate a certain category of private police officers, leaving a substantial portion of the private policing industry virtually unregulated. Many state regulations of private police misunderstand, and thus inadequately protect against the threat posed by the private policing industry. I argue that while most state regulations facilitate predictable transactions for security services, few statutes protect individuals from the potential social harms of the privatized police. Based on these descriptive observations, I make several normative recommendations for future regulation. In doing so, I borrow from the sociological literature on organizational regulation. I conclude that judicial attempts to control private police behavior through the expansion of the state action doctrine would be ineffective at deterring private police misconduct. Instead, state legislatures should expand the depth and breadth of current statutes.
Wednesday, November 14, 2012
This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family.
Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive or constitutionally infirm. Comparative analysis of the sort we have undertaken will, we hope, not only inform academics but empower regulators and administrators of prisons to implement thoughtful reforms.
Zoe Argento (Roger Williams University School of Law) has posted What the Digital Millennium Copyright Act Can Learn from Medical Marijuana: Fixing the Antitrafficking Provisions by Basing Liability on the Likelihood of Harm (Columbia Journal of Law & the Arts, Vol. 35, p. 503, 2012) on SSRN. Here is the abstract:
This Paper addresses the contradiction posed by a law that expressly allows decrypting a DVD to make certain types of fair uses while also banning the software necessary for decryption. Section 1201 of the Digital Millennium Copyright Act allows users to circumvent the digital locks protecting copyrighted works in some circumstances, but prohibits manufacturing and distributing the tools required to do so in all circumstances. In effect, § 1201 grants rights while banning the means necessary to take advantage of those rights. Circumvention tools are indeed capable of causing harm — by unlocking digital works for the purpose of infringement. But circumvention tools are also necessary for valuable uses — making digitally locked works available for purposes of free speech, research, education and privacy. In essence, regulating circumvention tools is the problem of regulating a tool with both fair and foul uses. This is not a new problem. As in legal regulations of similarly dual purpose tools, from medical marijuana to locksmith tools, liability for manufacturing and distributing circumvention tools should be based on the likelihood that such activity actually leads to harm.
Tuesday, November 13, 2012
Stanford law professor David Mills, Romano’s boss, came up with the idea of trying another ballot measure based on Cooley’s proposal for reform and with the district attorney’s endorsement. Romano and his students co-wrote the initiative with the NAACP Legal Defense Fund and Cooley’s office. Mills became the chief funder, donating $1 million to spearhead the cause. And Romano’s Stanford students indefatigably collected signatures to get the measure on the ballot.
The Proposition 36 team argued that the state was wasting $100 million a year locking up petty criminals. In a state with a perpetual budget crisis, that would seem like a strong card to play. But a Los Angles Times poll in September suggested otherwise: Support for the measure increased only slightly when the survey question about curtailing three strikes included the cost savings. Maybe what mattered most was fairness or the lack thereof, illustrated by stories like Norman Williams’.
Michal Gilad and Tal Gat have posted U.S. v. My Mommy: Evaluation of Prison Nurseries as a Solution for Children of Incarcerated Women (New York University Review of Law & Social Change, Vol. 36, 2012) on SSRN. Here is the abstract:
Several millions of children around the world suffer from the detrimental effects of parental incarceration. In the United States alone, over a quarter of a million children are separated from their mothers due to incarceration. Despite the fast growing magnitude of the problem and its vast effect on children, families and communities in the U.S. and around the world, relatively little attention is attributed to it in legal and social science scholarship. The article provides a comprehensive analysis of Prison Nursery Programs as a possible solution for children of incarcerated mothers. This is the first scholarly article to provide a diverse perspective that takes into consideration the rights and interests of all the parties involved, namely, the child, the mother, the state and the general public. It also provides a comparative analysis, suggesting policy improvements based on lessons learned from the experience of European countries in the field. Thus, the article provides a comprehensive basis for policy decisions concerning the institution of Prison Nursery Programs, as well as solutions for children suffering from parental incarceration in general. It also proposes new research directions that could advance this underexplored field.
From The New York Times:
“There should be an investigation not of the personal behavior of General Petraeus and General Allen, but of what surveillance powers the F.B.I. used to look into their private lives,” Anthony D. Romero, executive director of the American Civil Liberties Union, said in an interview. “This is a textbook example of the blurring of lines between the private and the public.”
Law enforcement officials have said they used only ordinary methods in the case, which might have included grand jury subpoenas and search warrants. As the complainant, Ms. Kelley presumably granted F.B.I. specialists access to her computer, which they would have needed in their hunt for clues to the identity of the sender of the anonymous e-mails. While they were looking, they discovered General Allen’s e-mails, which F.B.I. superiors found “potentially inappropriate” and decided should be shared with the Defense Department.
In a parallel process, the investigators gained access, probably using a search warrant, to Ms. Broadwell’s Gmail account. There they found messages that turned out to be from Mr. Petraeus.
Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, said the chain of unexpected disclosures was not unusual in computer-centric cases.