June 16, 2012
Sokol on Antitrust Enforcement
D. Daniel Sokol (University of Florida - Levin College of Law) has posted Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement (Antitrust Law Journal , Vol. 78, 2012) on SSRN. Here is the abstract:
This article shows the limitations to the optimal deterrence-inspired cartel enforcement policy currently used by the Department of Justice Antitrust Division. This article employs both quantitative and qualitative survey evidence of cartel practitioners to shed light upon the realities of US cartel enforcement policy. The empirical evidence provided by the practitioner surveys challenges the traditional assumptions behind the success of the DOJ’s cartel program. Perhaps the most interesting finding is that firms regularly game the leniency program to punish their competitors. For various reasons, firms and the DOJ have strong incentives to settle rather than to litigate cases in which the legality of cartel conduct may be in doubt. The surveys also expose limitations to the optimal deterrence framework for firms and individuals regarding incentives and behavior. These findings suggest the need for an enforcement focus on sub-units within the firm as well as various processes to change behavior that would improve enforcement and deterrence. Finally, the surveys suggest certain structural limitations in organizational behavior within firms that have prevented antitrust compliance programs from becoming embedded in a way that would reduce cartel activity. Additionally, this article provides an analysis of media coverage of cartel enforcement from 1990-2009. The analysis suggests that successful enforcement has not created sufficient awareness of cartel behavior among the public. Relative to other types of financial crimes, such as accounting fraud, the public seems unaware or uninterested in cartel activity. The conclusion summarizes the article’s findings and outlines potential future steps in cartel research.
June 15, 2012
Westen on the Paradox on Blackmail
Peter K. Westen (University of Michigan Law School) has posted Why the Paradox of Blackmail Is So Hard to Resolve (Ohio State Journal of Criminal Law, Vol. 9, No. p. 585, 2012) on SSRN. Here is the abstract:
The paradox of blackmail is the apparent contradiction between what popular intuition and reasoned reflection, respectively, regard as criminally culpable. Popular intuition indicates that it ought to be criminal — indeed, a paradigmatic instance of blackmail — for an actor, A, to extract value from a celebrity, Ms. B, by threatening unless paid to reveal an embarrassing secret about B (e.g., that B has an illegitimate child or is guilty of adultery), while offering if paid to remain silent. Yet reason suggests that there is nothing wrong with A’s extracting value from B regarding a lawfully-marketable good, i.e., information, by A’s conditionally threatening and offering to do things with the information that are lawful when done unconditionally (i.e., disclosing it or withholding it, whichever A prefers). I believe that many instances of criminalized blackmail are no more paradoxical than run-of-the-mill extortion, because what actors conditionally threaten and offer to do in such cases is actually unlawful — though not necessarily criminal — when done unconditionally. Yet truly paradoxical cases remain, including the aforementioned one involving Ms. B. I argue that the continued criminalization of such cases is based upon the same intuition that underlies that much-criticized doctrine of double effect: the intuition that an actor who reasonably believes that the harm he is inflicting is a lesser evil under the circumstances is, nevertheless, culpable, if his motivating purpose is to inflict the harm. The criminalization (and, hence, the paradox) will persist until lawmakers are persuaded it is a misapplication of otherwise valid roles for purpose and motive in criminal law and morals.
Right to Assisted Suicide in British Columbia (Kolber)
In what's described in this article as a "stunning decision," the British Columbia Supreme Court released an opinion today that provides for a right to assisted suicide. Here's an excerpt from the article (the decision itself is apparently 395 pages):
B.C. Supreme Court Justice Lynn Smith ruled she was giving Taylor an “exceptional remedy of a constitutional exemption” while Parliament decides whether and how to respond to the declarations of constitutional invalidity.
Smith placed a 12-month extension on her ruling, which means that while she has ruled the current law invalid, Parliament has one year to change the law.
In her 395-page ruling, Smith found that Taylor’s Charter rights were violated under the 20-year law, which made it a criminal offence for anyone to arrange and receive assistance in their own death.
Smith found that the current legislation infringes Taylor’s equality rights because the law does not prohibit suicide. Smith added that people who are so physically disabled that they cannot commit suicide without help are denied that option because s.241 in the Criminal Code prohibits assisted suicide.
Reid on Third-Party Doctrine
Blake Ellis Reid (Georgetown University - Institute for Public Representation) has posted Keeping Up with the Joneses: The End of Police-Centric Justifications for the Third-Party Doctrine on SSRN. Here is the abstract:
I write this essay to make a very narrow point: Justice Sotomayor’s and Justice Alito’s concurring opinions in the Supreme Court’s recent decision in United States v. Jones seem to suggest that there are at least five votes on the Court for the proposition that the third-party doctrine of the Fourth Amendment cannot be justified by initial or primary reference to the needs of the police. The concurring opinions in Jones suggest that the initial inquiry in any Fourth Amendment search case, particularly those involving a third party, must instead address the objective privacy interests of society’s innocent citizens.
June 14, 2012
Vincent on Restoring Responsibility Through Brain Interventions
Nicole A. Vincent (Department of Philosophy, Macquarie University) has posted Restoring Responsibility: Promoting Justice, Therapy and Reform Through Direct Brain Interventions (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
Direct brain intervention based mental capacity restoration techniques - for instance, psycho-active drugs - are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal contexts - i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has - in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership - and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities.
Podgor on Corporate Criminal Liability
Ellen S. Podgor (Stetson University College of Law) has posted Symposium Introduction - Corporate Criminal Liability (Stetson Law Review, Vol. 41, No. 1, 2011) on SSRN. Here is the abstract:
This is the Introduction to Stetson University's College of Law Symposium Issue on Corporate Criminal Liability. The papers from this symposium came from a discussion forum held as part of the Southeastern Association of Law Schools (SEALS) conference. This Introduction provides an overview of corporate criminal liability and also a roadmap of the papers that are part of this volume.
June 13, 2012
"5-month-old given formula made with alcohol; mother arrested'
From the Los Angeles Times:
A 5-month-old Stockton girl was hospitalized after her family said they accidentally used a water bottle filled with alcohol to make baby formula.
The girl's 26-year-old mother, Lesha Hill, was arrested Saturday on child abuse charges, authorities said. Hill's mother, Tressie Piggee, said she didn't think her daughter should face charges "because it was an accident."
"No New Trial for John Edwards"
From The New York Times:
The Justice Department said Wednesday it would not retry Mr. Edwards on the five charges of campaign finance fraud on which a North Carolina jury could not reach a verdict after a six-week trial that ended this month. The jury acquitted him on a sixth.
. . .
Still, loose ends remain, not the least of which is whether the case will prompt a harder look at the complex world of campaign finance. Over the weeks of testimony in Judge Catherine C. Eagles’s courtroom, there were only a handful of days when the rules governing how candidates spend money were examined. In interviews afterward, jurors said the government had not proved that any laws were broken.
Ohm on Government Use of Private Surveillance
Paul Ohm (University of Colorado Law School) has posted The Fourth Amendment in a World Without Privacy (Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012) on SSRN. Here is the abstract:
This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society.
Meanwhile, the police can access the records that the surveillance society produces and stores with few impediments. Current Fourth Amendment doctrine — premised on the reasonable expectation of privacy test and elaborated through principles such as assumption of risk, knowing exposure, and general public use — places far fewer hurdles in front of the police when they use the fruits of somebody else’s surveillance than when they do the surveillance themselves. As the surveillance society expands, the police will learn to rely more on the products of private surveillance, and will shift their time, energy, and money away from traditional self-help policing, becoming passive consumers rather than active producers of surveillance. Private industry is destined to become the unwitting research and development arm of the FBI. If we continue to interpret the Fourth Amendment as we always have, we will find ourselves not only in a surveillance society, but also in a surveillance state.
If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power.
Roach on Canadian Counter-Terrorism
Kent Roach (University of Toronto - Faculty of Law) has posted Counter-Terrorism In and Outside Canada and In and Outside the Anti-Terrorism Act (Review of Constitutional Studies/Revue d’études constitutionnelles, Volume 16, Issue 2, 2012) on SSRN. Here is the abstract:
Canadian counter-terrorism as practiced in the Anti-Terrorism Act (ATA) has been more respectful of human rights than Canadian counter-terrorism as practiced outside the ATA and outside of Canada. Although the ATA was influenced by British law, its definition of terrorism, preventive arrest, investigative hearings and secrecy provisions are more restrained than those of some other democracies. The ATA demonstrates a commitment to legality and democratic debate. In contrast, counter-terrorism outside the ATA has involved indeterminate detention of non-citizens on the basis of secret evidence and with the threat of deportation to torture; listing of terrorists on the basis of secret evidence; and refusal by Canadian courts to require Canada to request Omar Khadr’s repatriation or to restrain Canadian officials from transferring Afghan detainees to possible torture by Afghan officials. Despite the recommendations of the Arar and Air India public inquiries, Canada does not have adequate accountability structures to monitor and restrain informal and transnational counter-terrorism.
June 12, 2012
Gazal-Ayal, Turjeman & Fishman on Sentencing Guidelines and Prosecutorial Power
Oren Gazal-Ayal , Hagit Turjeman and Gideon Fishman (University of Haifa - Faculty of Law , University of Haifa - Department of Sociology & Anthropology and University of Haifa - Department of Sociology & Anthropology) have posted Do Sentencing Guidelines Increase Prosecutorial Power? – An Empirical Study (Law and Contemporary Problems, Vol. 76, No. 1, 2012) on SSRN. Here is the abstract:
Sentencing guidelines have been enacted across the United States and are currently being considered in other countries, including Israel. However, researchers argue that the new sentencing structures shift too much power to prosecutors. A unique set of data from Israel allows for a controlled examination of sentencing outcomes for people accused of aiding illegal aliens during three time periods: before the imposition of strict judicial sentencing guidelines, after this change was made, and then following the court’s mitigation of those guidelines. We find that prosecutors did not gain direct sentencing power from the guidelines. In fact, judges were often willing to depart from the guidelines even when prosecutors asked them to follow them. The guidelines might have had an effect on defendants, leading them to believe that they better plea bargain with the prosecutors. But when defendants did not bargain, they, in most cases, managed to convince the court not to follow the harsh guideline, even if prosecutors objected to the departure. It seems that judges, more than prosecutors, are willing to depart from harsh guidelines even when they are supposed to be bound by them. Hence we did not find support to the transfer of sentencing power theory.
June 11, 2012
Bailey on Privacy and Domestic Violence
Kimberly Bailey (Chicago-Kent College of Law) has posted It's Complicated: Privacy and Domestic Violence (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article challenges the notion that there is no role for privacy in the domestic violence context. Privacy is a complicated concept that has both positive and negative aspects, and this Article examines the value that more privacy could provide for domestic violence victims. While privacy was historically used as a shield for batterers, more privacy for domestic violence victims could protect their personhood, ensuring that they are treated with dignity and respect. In addition, current mandatory criminal justice policies have become so intrusive in many victims’ lives that limitations are needed to prevent the threat of state abuse. These protections are particularly important for poor victims and victims of color who are more vulnerable to such abuses. In many cases, a domestic violence victim’s choice not to pursue the arrest and prosecution of her batterer should be respected by state authorities. In addition, no victim should be required to cooperate as a witness against her batterer.
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which links to papers:
- Evans v. Michigan: Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact.
Summary reversal of 6th Circuit's habeas grant in 29-year-old murder convictions
The unanimous per curium opinion is in Parker v. Matthews.
June 10, 2012
Top-Ten Recent SSRN Downloads
|1||602||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
Last Revised: May 2, 2012 [previously 2nd]
|2||527||The Harmful Side Effects of Drug Prohibition
Randy E. Barnett,
Georgetown University Law Center,
Date posted to database: March 13, 2012 [previously 3rd]
Joshua D. Blank, Nancy C. Staudt,
New York University School of Law, USC Law School,
Date posted to database: April 5, 2012 [previously 6th]
|4||345||The Mosaic Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: April 3, 2012 [previously 5th]
|5||179||American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William Stuntz
Vanderbilt University - Law School,
Date posted to database: March 28, 2012 [previously 10th]
|6||165||What Percentage of DOJ FCPA Losses is Acceptable?
Butler University College of Business,
Date posted to database: March 23, 2012 [previously 9th]
|7||129||Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment
Laura I. Appleman,
Willamette University College of Law,
Date posted to database: March 29, 2012 [new to top ten]
|8||126||The 2009 NAS Forensic Science Report: A Literature Review
Paul C. Giannelli,
Case Western Reserve University - School of Law,
Date posted to database: April 12, 2012 [new to top ten]
|9||125||Flow Chart for Hearsay and the Confrontation Clause 'Crawford Through Bernadyn'
University of Baltimore - School of Law,
Date posted to database: March 29, 2012 [new to top ten]
|10||120||'All Eyez on Me': America's War on Drugs and the Prison-Industrial Complex
andré douglas pond cummings,
West Virginia University College of Law,
Date posted to database: April 5, 2012 [new to top ten]