Saturday, May 19, 2012
Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Applying Crawford's Confrontation Right in a Digital Age on SSRN. Here is the abstract:
Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Symposium Essay shifts the focus to the future, exploring how the Supreme Court’s new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.
Friday, May 18, 2012
José F. Anderson (University of Baltimore - School of Law) has posted Big Brother or Little Brother? Surrendering Seizure Privacy for the Benefits of Communication Technology (Mississippi Law Journal, Vol. 81, No. 5, 2012) on SSRN. Here is the abstract:
Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave importance for privacy purposes. By our behavior as a nation, have we indicated a rejection of the liberty Franklin was writing about in our modern times? In no area has the rapid rise of technology affected our lives more than in the area of communication through computers and other devices, like so called "smart telephones."
Patrick Metze (Texas Tech University School of Law) has posted Troy Davis, Lawrence Brewer, and Timothy Mcveigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality (6 Charleston L. Rev. 333 (Winter 2012)) on SSRN. Here is the abstract:
This article discusses the morality of the death penalty in regards to Troy Davis, Lawrence Brewer, and Timothy McVeigh.
Thursday, May 17, 2012
Christine Chambers Goodman (Pepperdine University School of Law) has posted The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act (University of Miami Law Review, Vol. 66, 2011) on SSRN. Here is the abstract:
Character evidence has long been a subject of hearty debate. It is common sense to seek information about a person's past behavior and about others' impressions of a person about whom we are trying to make a decision. Jurors in criminal cases feel the same way, and in close cases, common sense tells them to consider the defendant's prior behavior, and the opinions and impressions of those who know the defendant outside of court.
Wendy Larcombe (Melbourne Law School) has posted Worsnop v The Queen: Subjective Belief in Consent Prevails (Again) in Victoria's Rape Law (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:
The 2010 decision of the Victorian Court of Appeal in Worsnop v The Queen provides yet another example of rape law reform not achieving its intended effects. The Court held that a jury direction on the mental element of rape, introduced by the Crimes Amendment (Rape) Act 2007 (Vic), had not altered the law in the ways imagined by the Act’s drafters and supporters. Specifically, Worsnop determined that a jury cannot convict for rape if they find there is a reasonable possibility that the accused held an honest belief in consent (however unreasonable or mistaken). On this point, the Court found that both the Bill’s Explanatory Memorandum and the Victorian Criminal Charge Book were incorrect. This note argues that further statutory reform will now be required to ensure that the ‘fault element’ for rape in Victoria is brought into line with the communicative model of sexual relations enshrined in other sections of the Crimes Act 1958 (Vic).]
Wednesday, May 16, 2012
Frank O. Bowman III (University of Missouri School of Law) has posted Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System (Federal Sentencing Reporter, Vol. 24, No. 5, 2012) on SSRN. Here is the abstract:
This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.
First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.
Jenny E. Carroll (Seton Hall University School of Law) has posted The Resistance Defense (64 Alabama L. Rev. ___ , forthcoming 2012) on SSRN. Here is the abstract:
This article explores a previously ignored set of defendants — those who choose to rely on a defense of resistance. From Warren Jeffs, the polygamist recently convicted of child rape in Texas, to John Brown, the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection, these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it. Though their belief systems varied, they appear throughout history in moments of social or political crisis and challenge the capacity of the law to encompass their story.
Tuesday, May 15, 2012
Larry Alexander (University of San Diego School of Law) has posted Causing the Conditions of One's Defense: A Theoretical Non-Problem (Criminal Law and Philosophy (Forthcoming)) on SSRN. Here is the abstract:
My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.
William Stancil (University of Minnesota - Twin Cities - School of Law) has posted How Warrantless Search Cases Are Really All the Same (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Fourth Amendment jurisprudence is an exercise in absurdity. Even with thousands of cases and hundreds of repeated fact patterns to rely on, courts aren't able to come up with consistent rules. In order to address the problem, this paper proposes a new way of thinking about warrantless searches. It ignores the debate over substantive Fourth Amendment law, and sidesteps the body of scholarly work that compares the "first principles" underlying different search regimes. Instead, it describes all searches as discrete events with common elements. Every search has a "subject" -- the object or space which has come under surveillance -- and a "method" -- the means used to reveal the subject. As a result, every search also has a universal, two-part conceptual structure. Much of the confusion over the Fourth Amendment occurs because judges ignore these fundamental features when writing search rules.
Hillary B. Farber (University of Massachusetts School of Law) has posted J.D.B. v. North Carolina: Ushering in a New 'Age' of Custody Analysis Under Miranda (Brooklyn Journal of Law and Policy, Vol. 20, No. 1, p. 117, 2011) on SSRN. Here is the abstract:
Over the past six years, the United States Supreme Court has carved out a distinct jurisprudential approach to youth. In 2005, the Court abolished the death penalty for juveniles in Roper v. Simmons. Then the Court ruled that juveniles could no longer be sentenced to life without the possibility of parole for non-homicide offenses in Graham v. Florida. One year after Graham, the Court handed down J.D.B. v. North Carolina, completing what could be considered a trilogy of cases that forge a new approach to youth status in our justice system.
Monday, May 14, 2012
Robert A. Mikos (Vanderbilt Law School) has posted Can the States Keep Secrets from the Federal Government? (University of Pennsylvania Law Review, Vol. 161, Forthcoming) on SSRN. Here is the abstract:
States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information from the states.
Fredrick E. Vars (University of Alabama - School of Law) has posted Delineating Sexual Dangerousness (Houston Law Review, Vol. 50, Forthcoming) on SSRN. Here is the abstract:
Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This article closes it.
The due process balancing test used to evaluate standards of proof provides the framework. This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution.
Max Waltman (Stockholm University--Political Science) has posted The Ideological Obstacle: Challenging Pornographers with Prostitution Laws (Midwest Political Science Association Conference, Chicago IL, April 11-15, 2012) on SSRN. Here is the abstract:
Prostitution is a social practice where money is paid for sex. Social science research and other evidence suggest that the sex in pornography is generally supplied by persons who share similar unequal, exploitative, and coercive life circumstances as those who are prostituted generally share. Given that these conditions are similar, there appears to be little reason why the pornography industry should not be subjected to the same legal scrutiny as prostitution per se, as it could have extremely important implications for the population who are exploited in the sex industry. Thus, this paper inquires into the legal, political, and ideological obstacles to address the harmful exploitation of persons in the pornography industry by applying prostitution laws to its production, finding that the obstacles to application are not legal but ideological and political.
Sunday, May 13, 2012
|1||1983||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
|2||526||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
|3||330||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
|4||301||The Mosaic Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: April 3, 2012
|5||267||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 (6th last week)
|6||257||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 (7th last week)
|7||163||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 (8th last week)
|8||134||American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William 9thStuntz
Vanderbilt University - Law School,
Date posted to database: March 28, 2012 (new to top ten)
|9||133||Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction)
Stuart P. Green,
Rutgers, The State University of New Jersey - School of Law-Newark,
Date posted to database: March 23, 2012 (new to top ten)
|10||142||What Percentage of DOJ FCPA Losses is Acceptable?
Butler University College of Business,
Date posted to database: March 23, 2012 (9th last week)