March 23, 2012
Tiersma & Solan on Language Crimes
Peter Tiersma (pictured) and Lawrence M. Solan (Loyola Law School Los Angeles and Brooklyn Law School) have posted The Language of Crime (THE LANGUAGE OF CRIME, Peter M. Tiersma, Lawrence M. Solan, eds., The Oxford Handbook of Language and Law, 2012, Brooklyn Law School) on SSRN. Here is the abstract:
Many crimes are generally performed by using language. Among them are solicitation, conspiracy, perjury, threatening, and bribery. In this chapter, we look at these crimes as acts of speech, and find that they have much in common – and a few interesting differences. For one thing, they involve different acts of speech, ranging from promises to orders. For another, most language crimes can be committed through indirect speech. Few criminals will say, “I hereby offer you a bribe,” or “I hereby engage you to kill my spouse.” Thus, many of the legal battles involve the extent to which courts may draw inferences of communicative intent from language that does not literally appear to be criminal. Yet the legal system draws a line in the sand when it comes to perjury, a crime that can only be committed through a direct fabrication. We provide a structured discussion of these various crimes that should serve to explain the similarities and difference among them.
Mattes on a Combined Individual Client and Advocacy Criminal Clinic
Katherine Maris Mattes (Tulane Law School) has posted The Tulane Criminal Law Clinic: An Evolution into a Combined Individual Client and Advocacy Clinic (Clinical Law Review, Vol. 18, p. 77, 2011) on SSRN. Here is the abstract:
This article describes the evolution of the Tulane Criminal Law Clinic from a clinic focused on the more traditional “one client, one case” model of clinical education to its current form which combines individual client representation with systemic advocacy. This evolution began after the clinic found it hard to ignore the community impact of our success in challenging the constitutionality of a statute dealing with defendants who were found permanently incompetent to stand trial. The evolution was accelerated after the Tulane Criminal Law Clinic, along with the Loyola Criminal Law Clinic, was appointed to represent all of the inmates of Orleans Parish Prison after Hurricane Katrina wiped out the public defender system and left thousands of incarcerated defendants unrepresented.The courthouse had been flooded and closed, the evidence room had been flooded and closed; there were no court records available, the police department was in chaos, there was no functioning mechanism to serve subpoenas, witnesses had scattered. Individual case litigation was not an option. We had to develop non-litigation approaches in order to advocate for our clients. Our post-Katrina experience underscored the need for clinical pedagogy to include a broad range of strategies in addition to litigation in order to be effective. As the criminal justice institutions began to function again, the clinic used some of these newly developed non-litigation advocacy skills – legislative advocacy, collaboration with other lawyers, community education, and more to improve the treatment of defendants who had been found incompetent to stand trial. We learned that expanding our clinical practice beyond individual client litigation provides our students with the opportunity to broaden their problem solving skills and to develop a full range of advocacy tools. Those skills help not only to effectively achieve the goals of our clients but to achieve systemic changes. Those systemic changes help our clients as they interface with the same system in the future and relieve similarly situated members of the community. Thus, Katrina brought into focus challenges we were only beginning to uncover prior to her impact and taught us the value, indeed the necessity, of broadly interpreting the advocacy and skills lawyers must develop.
Cohen on Best Interests in Reproductive Regulation
As Justice Douglas wrote in Skinner v. Oklahoma, procreation is one of the “basic civil rights of man.” Along with marriage it is “fundamental to the very existence and survival of the race” and the state’s interference with it “threatens to have subtle, far-reaching and devastating effects.” And yet the U.S. and other countries regulate a wide range of reproductive activities such as forbidding anonymous sperm donation, funding abstinence education, criminalizing brother-sister incest, preventing the sale of sperm or eggs or surrogacy services, and forbidding single individuals from accessing reproductive technologies. In justifying these and other regulations of reproduction legislatures, courts, and commentators have relied (at least in part) on an idiom that I call Best Interests of the Resulting Child (BIRC) as a justification, which focuses on the best interests of the child who will (absent state intervention) result from these forms of reproduction.
My goal in this Article and its companion paper Regulating Reproduction: the Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), http://ssrn.com/abstract=1955292 is to reveal and delve into the secret ambition of best interests (sometimes called child welfare or child-protective) discourse in the regulation of reproduction. By discussing best interests in this context, the party proposing reproductive regulation is able to avoid charged and heated political disagreements by offering a palatable idiom on which multiple political theories can converge. After all, who is in favor of allowing harm to society’s most vulnerable?
While palatable, however, I show that this justification is vacuous and pernicious. I draw on insights from bioethics, philosophy of identity, and doctrinal rejections of wrongful life tort liability to show why BIRC justifications are vacuous: Unless the state’s failure to intervene foists on the child a life not worth living any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist.
BIRC reasoning is pernicious because it masks the true justifications that undergird these regulations of reproduction. It offers a way of talking about the regulation of reproduction that avoids confrontation with justifications that are disturbing, controversial, and/or illiberal; approaches that may justify eugenics, mandatory enhancement, or other problematic ideas. My goal in this Article is to force that confrontation and to evaluate the plausibility of these substitute justifications once exposed.
In this part of the project, I focus on four justifications that might be thought of as substitutes for BIRC. First, Reproductive Externalities, wherein the regulation of reproduction is justified not as the prevention of harm to the resulting child (the BIRC justification) but based on the costs that reproduction imposes on third parties. Second, Wronging while Overall Benefiting, where the fact that harm is done to provide an overall benefit is insufficient to save the act from being wrongful. Third, Legal Moralist approaches, which seek to use the criminal law or other regulatory tools to deter acts that neither harm nor offend but undermine public morality in order to maintain traditional ways of life. Finally, Virtue Ethics approaches, which focus on encouraging parental virtue as the basis for intervention. I consider the sufficiency of each in turn as a substitute for BIRC and the pattern of reproductive regulation they would permit.
I show that each substitute approach runs into serious problems. While I find the Reproductive Externalities approach the most promising, I show that when properly understood even this approach can justify only a much narrower swath of regulation of reproduction than currently exists, such that much of the existing law in this area cannot be justified.
Those who are interested in the project, might also find interesting two related articles I have written: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, 100 Georgetown Law Review, Vol. 100, 2012, available at http://ssrn.com/abstract=1961605 and Intentional Diminishment, the Non-Identity Problem, and Legal Liability, Hastings Law Journal, Vol. 60, 2008, available at http://ssrn.com/abstract=1330504.
March 22, 2012
Starkey on How The Equal Protection Clause can Change Discriminatory Stop and Frisk Policies
Brando Simeo Starkey (Villanova University - School of Law) has posted A Failure of the Fourth Amendment & Equal Protection’s Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies on SSRN. Here is the abstract:
Black and Hispanic males in low income communities insist, with statistical studies on their side, that police officers regularly stop and frisk them without the required reasonable suspicion. This is a failure of the Fourth Amendment. The Equal Protection Clause should be a tool that people of color can use to redress their being denied their constitutional rights on racial grounds. The Supreme Court’s equal protection jurisprudence, however, requires that claimants prove intent to discriminate. Known as the Intent Doctrine, this requirement has almost effectively removed from the Constitution, for racial minorities at least, the guarantee of equality under the law.
This Article insists that the Supreme Court should permit claimants to prove an equal protection violation either through intent or a standard I call “Plaintiff-Burdened Deliberate Indifference” (PBDI). To show how PBDI will produce transformational change for racial minorities generally, this Article examines how it will operate in one important context: discriminatory stop and frisk tactics. Under PBDI, racial minorities can enter a courtroom armed with an equal protection argument and leave with the stereotypically rogue police department having to change its stop and frisk tactics. In full, this Article’s thesis is that the Equal Protection Clause should force police departments to ensure that their stop and frisk policies, in operation, do not discriminate on the basis of race and the best way to get there is to embrace Plaintiff-Burdened Deliberate Indifference instead of other existing equal protection fixes.
Husak on Preventive Detention as Punishment
Douglas Husak (Rutgers, The State University of New Jersey - Department of Philosophy) has posted Lifting the Cloak: Preventive Detention as Punishment (San Diego Law Review, Vol. 48, p. 1173, Fall 2011) on SSRN. Here is the abstract:
I propose that the most promising means to defend preventive detention is to construe it as punishment for crime. I respond to conceptual and normative reasons to believe that my proposal is unsound.
Magrisso on Protecting Apartment Dwellers from Warrantless Dog Sniffs
Joseph Magrisso has posted Protecting Apartment Dwellers from Warrantless Dog Sniffs (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
This article argues that when the United States Supreme Court decides Florida v. Jardines, No. 11-564, it should hold that a dog sniff for drugs of the exterior of a home is a search under the Fourth Amendment to the Constitution. The Florida Supreme Court had held that a dog sniff of the exterior of a house is a search requiring probable cause and a warrant. However, the Florida Supreme Court did not extend its holding to dog sniffs of the exteriors of apartments and similar dwellings in multi-unit structures. Faced with precedent from other jurisdictions that interprets United States Supreme Court case law to hold that a dog sniff is never a search, the Florida Supreme Court nonetheless endeavored to preserve the sanctity of the home from the intrusion posed by warrantless dog sniffs. Once determined on that path, the Florida Supreme Court should have extended Fourth Amendment protection from warrantless dog sniffs to types of homes other than houses. This article argues that, as homes, apartments and similar dwellings harbor expectations of privacy just as reasonable as those attached to houses, so that if houses receive protection, so should they. The Florida Supreme Court left its task incomplete, but Jardines has presented the United States Supreme Court with an opportunity to revisit its dog sniff jurisprudence, and to preserve the sanctity of the home.
Bentzen on Searching Government Employees in Light of City of Ontario v. Quon
Sheila Anne Bentzen (University of Iowa - College of Law) has posted Safe for Work? Analyzing the Supreme Court's Standard of Privacy for Government Employees in Light of City of Ontario V. Quon (Iowa Law Review, Vol. 97, No. 4, 2012) on SSRN. Here is the abstract:
This note analyzes the need for the Supreme Court to develop a constitutional standard for determining whether a government search of a public employee is reasonable under the Fourth Amendment. Specifically, this note stresses that the test needs to take into account emerging technology and its impact on public employees’ privacy rights. To properly ground these issues in current law, this note explores them through the lens of the Supreme Court’s two major opinions related to government searches of its employees — O’Connor v. Ortega and City of Ontario v. Quon. The note demonstrates that the Supreme Court has yet to produce a standard that adequately protects the privacy interests of public employees. To fill this gap in the law, this note proposes a balancing test that weighs the interests of both the government employer and the government employee. The test does so by considering the extent to which an employee’s work-related activity carries over into the private sphere of the home.
March 21, 2012
Tinto on Sentencing Manipulation
This Article examines the legal doctrine of “sentencing manipulation,” a claim, raised at the time of sentencing, in which the defendant argues that undercover police officers purposefully encouraged him to commit particular criminal conduct in order to expose him to a higher, and often mandatory, punishment. Currently, the sentencing manipulation claim has no consistent animating theory nor uniform definition or procedural treatment. Based on traditional theories of punishment as well as the systemic interest in an accurate determination of a defendant’s culpability, this Article argues that inducements, used by undercover officers and their agents to encourage the suspect to commit particular criminal conduct, should be the central focus of a reformed sentencing manipulation doctrine. The sentencing manipulation doctrine as currently conceived fails to recognize the potential and problematic impact of police inducements on an assessment of a defendant’s culpability and reflects binary concerns of guilt versus innocence that, while perhaps appropriate for a claim made at trial, are inapposite for a claim made at the time of sentencing. In determining where to draw the line between police inducements that affect a defendant’s culpability and those that do not, this Article also suggests a new way to view police conduct — on a continuum ranging from conduct that “facilitated culpability” to conduct that “overstated culpability.” A reformed doctrine of sentencing manipulation, as proposed by this Article, appropriately directs courts’ focus to inducements used by the police or their agents that result in the overstatement of a defendant’s culpability, and to offense conduct which should therefore be removed from the sentencing calculus.
Argument transcript in harmless error case
The case is Vasquez v. United States.
Argument transcript in case involving effect of probable cause on allegation that arrest violated First Amendment
The case is Reichle v. Howards.
Opinions in cases involving ineffective assistance and guilty pleas
March 20, 2012
Garoupa & Echazu on Loser-Pays in Criminal Litigation
Nuno M. Garoupa (pictured) and Luciana Echazu (University of Illinois College of Law and Clarkson University) has posted Why Not Adopt a Loser-Pays-All Rule in Criminal Litigation? (International Review of Law and Economics, 2012) on SSRN. Here is the abstract:
In this paper we consider the potential effects that the application of a loser-pays-all rule may have on criminal litigation, including the decision to prosecute, criminal deterrence and legal error. We find that the effects of fee shifting on deterrence and on miscarriage of justice go in opposite directions. We also look at the effects of this rule on the rate of settlements (plea-bargaining) and when one party is wealth-constrained. We apply the insights of our model to current policy discussions such as the use of RICO proceedings and the financing of enforcement authorities in the United States.
Kerr on Slobogin on Kerr on Interpreting the Fourth Amendment
This short article for the Harvard Law Review Forum replies to an essay by Professor Christopher Slobogin, An Original Take on Originalism, 125 Harv. L. Rev. F. 14 (2011), which was itself a response to a recent article, Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011). In this reply, Professor Kerr explains why equilibrium-adjustment is not originalism, and shows how originalist and non-originalist approaches to interpreting the Fourth Amendment can coexist using equilbrium adjustment.
Transcript from arguments on LWOP for juveniles
Opinion on procedural default where state required ineffectiveness claims to be raised in collateral proceeding
Justice Kennedy wrote the opinion for the Court in Martinez v. Ryan. Justice Scalia, joined by Justice Thomas, dissented.
March 19, 2012
Kainen on Opening the Door to Illegally Obtained Evidence
Using ideas rooted in fact-finding accuracy, courts hold that defendants open the door to illegally-obtained evidence when they use exclusion as a "sword" to offer contradicted evidence or arguments. Yet the metaphor holding that rules excluding evidence can function "as shield, but not a sword" is inapt when applied to rules that promote non fact-finding goals. Whether the door is opened to admission of evidence excluded by such rules must depend on a contextual analysis of the rule's purpose. Finding that defendants cannot use the constitutional exclusionary rule to advance contradicted evidence or argument negates its necessary deterrent function. Defendants should lose immunity against illegally-obtained evidence only when they offer evidence derived from the same unlawful search or interrogation, or ask the jury to consider why the prosecution did not produce the suppressed evidence. The waiver rule allows the exclusionary rule to accomplish its purpose while protecting the integrity of our fact-finding process, which occasionally values social goals above fact-finding accuracy. By distinguishing arguments about the absence of suppressed evidence from those equivalent to assertions by witnesses required to lie about events to prevent jurors from learning of suppressed evidence, the waiver rule protects jurors from the assault on rational autonomy to which Kant objected. Whether Kant would find sufficient evidence law’s respect for jurors’ right not to be lied to or insist upon their right to all available evidence, we cannot expect evidence rules to function without limiting the evidence that jurors consider. As long as we do, courts must assure that their decisions about opening the door do not undermine the goals that exclusion is designed to achieve.
Risinger on Statisticians and Forensic Science
This is the text (with a few added footnotes) of an address given to the Young Statistician’s Section of the Royal Statistical Society in London on September 28, 2011. In it I compare the work of Cedric Neaumann and his colleagues on fingerprint identification with the work of Mary and Peter Bush and their colleagues on bitemark identification. These illustrate that good statistical modeling of sound data can lend support to the assumptions of some forensic identification disciplines, undermine the tenability of others, and can sometimes lead the way toward new techniques to supplement or replace human judgment with more objective assessments.
Transcript from argument about applicability of Apprendi to case involving criminal fines
The transcript in Southern Union Co. v. United States is here.
Today's criminal law/procedure cert grants
Issue summary is from ScotusBlog, which also links to papers:
- Ryan v. Gonzales: Does 18 U.S.C. § 3599(a)(2) “which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys" entitle a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?
- Tibbals v. Carter: Raising similar issues.
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