Friday, May 11, 2012
Michael L. Perlin (New York Law School) has posted 'There are No Trials Inside the Gates of Eden': Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence (Coercive Care, edited by Profs. Bernadette McSherry & Ian Freckelton, Routledge/Taylor & Francis (UK), Forthcoming) on SSRN. Here is the abstract:
The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities. It is most significantly changed in the area of mental disability law. Always marginalized, individuals with mental disabilities have always been “outsiders” in the world of international human rights law, with many important global human rights agencies traditionally expressing little or no interest in the plight of this cohort. Internationally, persons in forensic mental health systems generally receive, if this even seems possible, less humane services than do civil patients. Prisoners with mental disabilities are treated inhumanely in most nations, both in correctional facilities and in forensic mental health facilities.
Susan Riva Klein (pictured) and Ingrid B. Grobey (University of Texas School of Law and affiliation not provided to SSRN) have posted Debunking Claims of Over-Federalization of Criminal Law (Emory Law Journal, Volume 62, Forthcoming Sept. 2012) on SSRN. Here is the abstract:
Virtually all criminal law scholars, and many jurists, Republican legislators, and special interest groups bemoan the over-federalization of criminal law, which they perceive as the inevitable result of too many federal laws being enacted and enforced at the whims of Congress and federal prosecutors. This uncontrolled growth, they argue, disrupts the delicate balance between state and federal law enforcement systems by draining resources and attention away from local law enforcement.
Thursday, May 10, 2012
Eric Alan Johnson (University of Illinois College of Law) has posted Rethinking the Presumption of Mens Rea (Wake Forest Law Review, Vol. 47, No. 4, 2012) on SSRN. Here is the abstract:
This paper answers a question that has divided courts and scholars, namely: To which elements of a criminal offense does the traditional presumption of mens rea apply? Scholars long ago settled on the view that the presumption applies to every objective element — every proscribed result, for example, and every attendant circumstance. Courts, on the other hand, usually have held that the presumption applies only to elements that “make the conduct criminal” and not to elements that make the conduct a more serious offense. In this paper, I will argue that both views are problematic and that the right answer to the question of the presumption’s scope lies somewhere in between. The right answer, as Justice Stevens once suggested, is that the presumption of mens rea applies to every element except those designed exclusively to measure the degree of harm inflicted by the actor’s conduct. The reason why this is the right answer is that elements designed to measure instead the risk posed by the defendant’s conduct ordinarily cannot perform their function — cannot tell us anything about the wrongfulness of the actor’s conduct — without being assigned a mental state.
Andrew Guthrie Ferguson (UDC David A. Clarke School of Law) has posted Predictive Policing: The Future of Reasonable Suspicion (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:
Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.
David C. Baldus , Catherine M. Grosso (pictured), George G. Woodworth and Richard Newell (University of Iowa - College of Law , Michigan State University - College of Law , University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law) have posted Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005) (Journal of Criminal Law and Criminology, Vol. 101, No. 4, p. 1227, 2012) on SSRN. Here is the abstract:
This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period.
Wednesday, May 9, 2012
Jane Yakowitz Bambauer (Visiting Assistant Professor, Brooklyn Law School) has published How the War on Drugs Distorts Privacy Law (64 Stan. L. Rev. Online 131). In part:
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. . . .
The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.
Lenese C. Herbert (Albany Law School) has posted O.P.P.: How 'Occupy's' Race-Based Privilege May Improve Fourth Amendment Jurisprudence for All (Seattle University Law Review, Vol. 35, 2012) on SSRN. Here is the abstract:
This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in an era in which courts are free(er) to produce a more legitimate jurisprudence regarding police conduct that inspires greater confidence in reality-based adjudications of modern (albeit longstanding) police misconduct, irrespective of race, as the current “[s]ystems of privilege maintain hierarchies of inequality, adversely impacting the possibility of full societal participation.”
Inadequate medical care, inmate-on-inmate violence, and overcrowding routinely inflict extraordinary suffering on inmates, suffering that is incompatible with the Eighth Amendment and international human rights norms. Among the factors contributing to this widespread cruelty is a principal-agent problem: relative to voters as well as courts, local officials have greatly superior knowledge of conditions in their (typically isolated) prisons, and an incentive to shirk on the effort to implement difficult and expensive reforms.
In this short essay, I propose a novel market-based reform to ameliorate these problems. The fundamental idea is simple. Every year, each inmate will be entitled to elect to change prisons once per year. Should an inmate exercise this option, s/he will be randomly assigned to another prison within the jurisdiction. Sanctions will be imposed on prison operators whose inmates exercise an excessive number of exit rights.
Tuesday, May 8, 2012
Keith A. Findley (pictured), Patrick David Barnes , David A. Moran and Waney Squier
University of Wisconsin Law School , Stanford University - School of Medicine , University of Michigan at Ann Arbor - The University of Michigan Law School and John Radcliffe Hospital) have posted Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right (Houston Journal of Health Law and Policy, Forthcoming) on SSRN. Here is the abstract:
In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing.
Nita A. Farahany (Vanderbilt Law School) has published two interesting pieces exploring, inter alia, the pressures placed by evolving technology on existing doctrine. The first, which focuses on the Fifth Amendment, is Incriminating Thoughts (64 Stanford Law Review 351 (2012). The second, focusing on the Fourth Amendment, is Searching Secrets (160 University of Pennsylvania Law Review 1239 (2012). Both are highly recommended.
Monday, May 7, 2012
Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Plotting Premeditation's Demise (Law and Contemporary Problems, Vol. 75, No. 2, 2012) on SSRN. Here is the abstract:
Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.
This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s thoughts about the killing — either identifying with the wrong or displaying utter indifference to it; the quality of the defendant’s reasoning process; the number of choices the defendant made in killing; and the defendant’s responsibility for prior choices that may lead to degradation of his later reasoning. With all of these factors, it is simply no wonder that premeditation cannot capture the most culpable killers. No one test could. Moreover, because different aspects of choice yield different conceptions of why premeditation is culpable, abandoning premeditation will result in greater doctrinal clarity than simply suggesting supplements to it.
Is it possible to justify imposing criminal liability on corporations? Two of the most distinctive aspects of criminal law have no application to corporations: corporations cannot be jailed and they cannot form mens rea. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This article seeks to understand why we have corporate criminal liability and it concludes that only expressivism justifies the practice. Expressivism justifies punishment by reference to the benefits of a statement of moral condemnation. With regard to corporations, however, the power of expressivism is strongest in the absence of liability. While there may be some expressive benefit to holding corporations criminally liable, the expressive cost of excluding corporations from the criminal law altogether is the real driving force in justifying corporate criminal liability: immunity presents a materially harmful expression. This expressive cost of immunity justifies holding corporations criminally liable. Of course, just because it is possible to justify corporate criminal liability by reference to the expressive cost of immunity, it does not follow that the current practice of prosecuting corporations serves this end well. There are reasons to think it does not, but the relationship between expressivism and corporate criminal liability suggests a fruitful path toward reimagining how and when corporations ought to be subject to criminal liability. The path to reform is the subject of a subsequent article; this article lays the theoretical groundwork for reform.
The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this essay explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them is met. It concludes that Sell has created an unnecessarily complicated and often counter-productive legal regime that should be abandoned in favour of the regime that pre-existed it.
The New Yorker has an article by Nick Paumgarten entitled "Here's Looking at You: Should We Be Worried about the Rise of the Drone?" It includes an interesting account of the current technology. You can find an abstract here but need to subscribe or pay to view the entire piece.
Sunday, May 6, 2012
|1||1960||A Due Process Right to Record the Police
Glenn Harlan Reynolds, John A. Steakley,
University of Tennessee College of Law, Unaffiliated Authors -affiliation not provided to SSRN,
Date posted to database: April 23, 2012 [new to top ten]
|2||500||The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: March 29, 2012 [new to top ten]
|3||311||Implicit Bias in the Courtroom
Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey,Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin,
University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: March 21, 2012 [1st last week]
|4||287||The Mosaic Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: April 3, 2012 [3rd last week]
|5||271||SlutWalking in the Shadow of the Law: Rape and Sexuality in Legal Theory and Practice
DePaul University - College of Law,
Date posted to database: February 22, 2012 [2nd last week]
|6||259||Ensuring an Impartial Jury in the Age of Social Media
Amy J. St. Eve, Michael A. Zuckerman,
U.S. District Court Judge, U.S. District Court,
Date posted to database: March 13, 2012 [4th last week]
|7||246||The Delaware Death Penalty: An Empirical Study
Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells,
Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law,
Date posted to database: March 11, 2012 [6th last week]
|8||152||Zotero - A Manual for Electronic Legal Referencing
John Prebble, Julia Caldwell,
Victoria University of Wellington, Victoria University of Wellington,
Date posted to database: April 3, 2012 [new to top ten]
|9||136||What Percentage of DOJ FCPA Losses is Acceptable?
Butler University College of Business,
Date posted to database: March 23, 2012 [10th last week]
|10||181||Prisons, Privatization, and the Elusive Employee-Contractor Distinction
Emory University - School of Law,
Date posted to database: February 25, 2012 [9th last week]