Friday, January 6, 2012
Michael L. Perlin (New York Law School) has posted Considering Pathological Altruism in the Law from Therapeutic Jurisprudence and Neuroscience Perspectives (PATHOLOGICAL ALTRUISM, Barbara Oakley, Ariel Knafo, Guruprasad Madhavan, David Sloan Wilson, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). TJ presents a new model by which we can assess the ultimate impact of case law and legislation that affects mentally disabled individuals, studying the role of the law as a therapeutic agent, recognizing that substantive rules, legal procedures and lawyers' roles may have either therapeutic or anti-therapeutic consequences, and questioning whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles. In recent years, scholars have considered a vast range of topics through a TJ lens, including, but not limited to, all aspects of mental disability law, domestic relations law, criminal law and procedure, employment law, gay rights law, and tort law. At the same time, legal scholars have also turned their attention to the relationship between neuroscience and the law, mostly, but not exclusively, in the contexts of criminal law and procedure.
It seems axiomatic in a “society of laws and not of men” that a sentence ought to be generally proportioned in degree to the underlying criminal offense. Extreme sentences, when they appear disproportionate to the underlying offense, undermine public confidence in the justice system, are ineffectual as deterrents to an angry public who perceive them as unjust, and are not useful in reforming the criminal who can see no fairness in such an extreme sentence. This Note explores the principles and analytical tools several states’ judiciaries have expounded to analyze the proportionality of sentences, and concludes that these states have formulated a coherent and workable system of review that other jurisdictions can take advantage of by either legislative or judicial action.
Thursday, January 5, 2012
For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision — in prison or jail or on probation or parole — fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for decades, have begun to drop from their highest levels.
Gregory S. Schneider and Gabriel J. Chin (University of Arizona - James E. Rogers College of Law and University of California, Davis - School of Law) has posted Double Trouble: Double Jeopardy's Dual Sovereignty Exception and State Immigration Statutes (Arizona Journal of International and Comparative Law, Vol. 28, p. 353, 2011) on SSRN. Here is the abstract:
Arizona, along with other states, has begun enacting laws attempting to control the movement of undocumented non-citizens within and across its borders. This extraordinary new wave of legislation creates a serious vertical separation of powers problem, risking frustration of federal immigration policy. Although there are a number of reasons that the state action may be unconstitutional, this article focuses on the heretofore unexplored role of the Double Jeopardy Clause.
Wednesday, January 4, 2012
Tina Cafaro (Western New England University School of Law) has posted Slipping Through the Cracks: Why Can't We Stop Drugged Driving? (Western New England Law Review, Vol. 32, p. 33, 2010) on SSRN. Here is the abstract:
Part I of this Article briefly explains the history of impaired driving laws, with respect to both alcohol and drugs. It then sets forth the various frameworks currently in place to establish that an individual is OUI drugs and evaluates the effectiveness of each standard. Part II discusses the impediments to detecting and prosecuting OUI drug cases. This section details the difficulties associated with the science behind drugged driving, including determining the effect a drug may have on an individual as well as the validity of tests used to determine if one has a drug in their system. Part II highlights the issues pertaining to laws that regulate OUI licit (prescription or over-the-counter) drugs. This section also discusses the impact that lack of funding and inadequate training for law enforcement officers and prosecutors has on combating this crime. Finally, Part III recognizes that targeting drugged driving is more complicated than fighting OUI alcohol and suggests what is needed to combat this problem.
Arthur Leavens (Western New England University School of Law) has posted State Constitutionalism: State-Court Deference or Dissonance? (Western New England Law Review, Vol. 33, p. 81, 2011) on SSRN. Here is the abstract:
This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what deference if any does a state court owe the Supreme Court in interpreting state constitutional provisions protecting against unreasonable searches and seizures and affording the criminally accused the right to counsel?
Tuesday, January 3, 2012
SpearIt (Saint Louis University School of Law) has posted Child Pornography Sentencing and Demographic Data: Reforming Through Research (Federal Sentencing Reporter, Vol. 24, p. 102, 2011, Saint Louis U. Legal Studies Research Paper No. 2011-32) on SSRN. Here is the abstract:
This article examines demographic research on child pornography offenders and considers its utility for sentencing reform. It begins by tracing the history of the internet and federal possession law, detailing particularly how public and political panic about child pornography evolved within a growing fear of the internet itself. The article continues by surveying current demographic research on possession offenders. Drawing on this data and related research, the article considers what the literature can contribute to sentencing policy, simultaneously showcasing vast differences between the type of offender Congress intended to punish and those actually receiving the harsh punishment. Taken wholly, this article explains why child pornography guidelines represent a departure from the normal process of creating Federal Sentencing Guidelines; it tells how law succumbed to the forces of fear and stacked the scale against child pornography offenders.
Jules Epstein (Widener University - School of Law) has posted Ruminations on an Ethical Issue When Examining the Child Witness: Zealous Advocacy or Destroying Evidence (Widener Law Review, Forthcoming, Widener Law School Legal Studies Research Paper No. 11-53) on SSRN. Here is the abstract:
The prosecution of Earl Bradley, based on a cache of videotape evidence confirming horrific abuse of children by their pediatrician, resolved without testimony from a single child victim/witness. Yet the spectre of a possible trial in a case such as this brings with it significant questions of professional responsibility regarding the questioning of child witnesses. In a symposium devoted to the Bradley case, a hypothetical was posed to the audience asking whether defense counsel may ‘trigger’ a child witness’ fear, rendering her unavailable to testify. The precise hypothetical asked whether, when a client tells counsel “just mention the words ‘Nightmare on Elm Street’ and the child will freeze and not say a word,” counsel may then use that phrase in a question at a pre-trial competence hearing or at trial (ensuring the child’s inability to testify).
Monday, January 2, 2012
|1||311||Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
Yale University - Law School,
Date posted to database: November 29, 2011
|2||283||Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis
Wouter P. J. Wils,
Date posted to database: November 9, 2011 [3rd last week]
|3||176||Marriage as Punishment
Melissa E. Murray,
University of California, Berkeley - School of Law,
Date posted to database: November 2, 2011 [5th last week]
|4||141||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 [7th last week]
|5||137||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 [6th last week]
|6||130||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 [8th last week]
|7||125||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 [9th last week]
|8||103||Adoption of the Responsibility to Protect
William W. Burke-White,
University of Pennsylvania - Law School - Faculty,
Date posted to database: November 16, 2011 [10th last week]
|9||100||Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts
American University, Washington College of Law,
Date posted to database: November 23, 2011 [new to top ten]
|10||88||Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation
Alice J. Clapman,
University of Baltimore School of Law,
Date posted to database: November 21, 2011 [new to top ten]