Saturday, January 14, 2012
Issue summary is from ScotusBlog, which includes links to papers:
- Cavazos v. Williams: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.
Friday, January 13, 2012
One way in which law protects dignity is by enforcing human rights provisions that explictly or implicitly involve the protection of dignity or the prevention of degradation. But law's connection with dignity is also much deeper and more pervasive than this. In the way that it operates, in the way that it presents its requirements, in the way law expects its requirements to be taken on board and observed by those to whom the requirements are primarily addressed, in the procedural way that it organizes hearings, in the way that it sponsors argumentation, even in the way that it arranages for coercion--in all these ways, law treats humans as dignified agents, capable of self-control, with a sense of themsleves and their interests, and with the ability to respond intelligently and thoughtfully to its demands. These ideas, which originate with some comments by Lon Fuller, in "The Morality of Law," are developed extensively in the present paper. Of course it is true that law is sometimes brutal and degrading in its application; but the paper argues that it is part of law's inherently aspirational character to deal with human persons as dignified agents, and that this distinguishes legal forms of control from other modes of governance.
Thursday, January 12, 2012
Amy S. Farrell and Daniel Givelber (Northeastern University and Northeastern University School of Law) have posted Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt (The Journal of Criminal Law and Criminology, Vol. 100, No. 4, pp. 1549-1586, Fall 2010) on SSRN. Here is the abstract:
Data collected in four jurisdictions by the National Center for State Courts allows us to examine the question of judge and jury disagreement about guilt through a consideration of the views of jurors as well as judges. Using this data, we test in a modern context the hypothesis that the jury's embrace of values -- as opposed to its different assessment of the evidence -- explains why juries acquit when judges would convict. We find that legal and extralegal factors affect both judge and jury decisions about guilt, that both sets of factors predict disagreement in different contexts, and the pattern of agreement versus disagreement is more complex than suggested by the liberation hypothesis.
Rita Shackel (University of Sydney - Faculty of Law) has posted Victim Impact Statements in Child Sexual Assault Cases: A Restorative Role or Restrained Rhetoric? (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 211-249, 2011) on SSRN. Here is the abstract:
There is growing recognition of the communicative, therapeutic and other social benefits attached to Victim Impact Statements (VISs). This article examines the use of VISs in sentencing child sexual assault offenders in Australia. Analysis of a modest sample of 17 VISs extracted from the files of the NSW Office of the Director of Public Prosecutions is utilised in this discussion to explore the potential use and value of VISs as a medium for victims of child sexual assault to articulate the impacts of their victimisation to the court. This article argues that despite the promise of VISs as a communicative and restorative tool for victims and as a vehicle for the pursuit of other important criminal justice goals, a review of the legal and procedural framework for reception of VISs in child sexual assault cases, reveals that the potential utility of VISs is undermined in practice in several ways, including by evidentiary barriers and restrictive judicial interpretations of the law that have limited the use of such statements by sentencing courts.
Wednesday, January 11, 2012
David Alan Sklansky (University of California, Berkeley - School of Law) has posted A Postscript on Katz and Stonewall: Evidence from Justice Stewart's First Draft (UC Davis Law Review, Vol. 45, No. 4, 2012) on SSRN. Here is the abstract:
In an article published in 2008, I suggested that anxieties about homosexuality and its policing lay behind and helped to shape the criminal procedure decisions of the Warren Court — in particular, the landmark Fourth Amendment ruling in Katz v. United States. Katz is the telephone eavesdropping case in which the Supreme Court famously declared that the Fourth Amendment protects “people, not places”; it is the basis for the modern rule that whether police activity constitutes a “search” under the Fourth Amendment depends on whether it intrudes on a reasonable expectation of privacy, not on whether it involves a physical trespass. I argued in 2008 that when deciding Katz at least some of the Justices may have had, in the back in their minds, the then-widespread police practice of spying on men in public toilet stalls to detect homosexual sodomy. Katz plainly helped to end that practice. I suggested that this result was one that the Court, or at least some of its members, would have foreseen and welcomed, but that it was not something the Court felt comfortable addressing directly.
The case, Perry v. New Hampshire, is here, concluding that due process does not require an inquiry into the reliability of an identification if it was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Justice Sotomayor dissented.
Tuesday, January 10, 2012
Monday, January 9, 2012
Sunday, January 8, 2012
J. J. Prescott (University of Michigan Law School) has posted Child Pornography and Community Notification: How an Attempt to Reduce Crime Can Achieve the Opposite (Federal Sentencing Reporter, Vol. 24, No. 2, p. 93, December 2011) on SSRN. Here is the abstract:
Community notification laws, designed to reduce the frequency of sex offenses by alerting potential victims to nearby threats and by encouraging citizen monitoring of potential recidivists, may make sense in the context of traditional sex offenses and sex offenders. But child pornography crimes and the individuals who commit them are different, and they differ from archetypal sex crimes and criminals in ways that may unintentionally cause community notification laws to facilitate crime rather than inhibit it. Child porn offenses typically involve money or trade, and their commission hinges on successfully conspiring with others. Markets and information are necessary building blocks for this sort of criminal behavior. Child porn offenders must find each other to make crime pay. As a result, announcing the identity of past offenders may perversely make child pornography and its associated harms more, not less, of a problem. Lawmakers, therefore, should reconsider the blanket application of community notification requirements to child porn offenders. Shrinking the child porn market and its associated abuse of minors may be easier if the law subjects fewer child porn offenders to community notification requirements. For the same reason, when sentencing child porn distributors and possessors, judges should not assume that community notification can provide an effective substitute for the incapacitation benefits typically associated with incarceration.