Saturday, July 7, 2012
Paul C. Giannelli (Case Western Reserve University - School of Law) has posted Confrontation, Experts, and Rule 703 (20 J.L. & Pol’y 443 (2012)) on SSRN. Here is the abstract:
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 703 and 705, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.
Friday, July 6, 2012
The last decade of privacy scholarship is replete with theories of privacy that reject absolute binaries such as secret/not secret or inside/outside, instead favoring approaches that take context into account to varying degrees. Fourth Amendment doctrine has not caught up with theory, however, and courts continue to employ discredited binaries to justify often contradictory conclusions. Even when courts venture outside the binaries, as the concurring justices did when addressing GPS tracking in United States v. Jones, they clearly lack the language and the framework with which to discuss complicated privacy issues that defy binary description. While some Fourth Amendment cases reveal the influence of contextual thinking, courts have rarely included an explicit commitment to context in their opinions. I believe that such a commitment would improve both the internal consistency and individual case outcomes of the Fourth Amendment.
Samuel R. Gross (pictured) and Michael Shaffer (University of Michigan Law School and University of Michigan Law School) have posted Exonerations in the United States, 1989–2012 on SSRN. Here is the abstract:
This study presents and analyzes data on the first 873 exonerations reported by the National Registry of Exonerations, exonerationsregistry.org, a new project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. The Registry assembles and posts information on exonerations of people who were convicted of serious crimes in the United States.
The database, which includes exonerations from January 1989 through February 2012, is larger and more diverse than any comparable collection. Over 60% of the cases did not involve DNA evidence. Earlier datasets were limited almost entirely to rape and murder cases, but more than 150 of these exonerations were for convictions that did not involve homicide or sexual assault, and more than 100 of the sexual assault exonerations were from child sex abuse convictions.
Mona Lynch and Craig Haney (University of California, Irvine - Department of Criminology, Law and Society and University of California, Santa Cruz - Department of Psychology) have posted Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury (Michigan State Law Review, Vol. 2011, No. 573, 2011) on SSRN. Here is the abstract:
This article examines the problem of racial bias in capital cases generally and its operation within capital juries in particular. We provide a brief summary of the empirical research that demonstrates how juror demographics and defendant race interact to produce race-based death sentencing. We then explore some of the psychological dynamics that are at the core of discriminatory death sentencing by capital jurors, particularly the tendency of White jurors to more often sentence Black defendants to death. We then examine some of legal approaches that have been used to address this problem in the past, as well as the evidence of how and why they have fallen short of doing so. We conclude by proposing a set of reforms that focus more precisely on the core psychological issues that we believe are at the heart of this problem of racially biased capital jury sentencing.
Thursday, July 5, 2012
This paper critically examines Victor Tadros’s ‘Duty View’, which he defends in his highly stimulating book The Ends of Harm. This paper shows that, while there are many attractive parts to Tadros’s account including its focus on offenders’ reparative duties, it can be challenged on how it understands the duties of offenders and victims. The best version of the Duty View fits within a non-punitive theory of criminal justice rather than a deterrence theory of punishment.
Steven H. Resnicoff (DePaul University College of Law) has posted Chapter 8 - Extraordinary Sources of Jewish Law: the Example of Capital Punishment (Steven H. Resnicoff, Chapter 8 of Understanding Jewish Law (LexisNexis, 2012)) on SSRN. Here is the abstract:
Most Jewish law scholarship, especially that which is published in English, focuses on only one of Jewish law’s criminal law enforcement systems, namely, the operation of the rabbinic court system pursuant to the rules set forth in the Pentateuch, as interpreted in the Babylonian Talmud. In fact, this literature usually fails even to acknowledge the existence of the two other law enforcement systems: (1) enforcement by rabbinic courts functioning under their “extraordinary powers”; and (2) and enforcement by a Jewish king. These two systems vary enormously as to the procedural protections they provide and as to their practical consequences. Failing to examine them causes one to very seriously misunderstand how Jewish law functioned throughout history and paints a rather "Pollyanna-like" portrait of Jewish law.
Xiaodong Liu , Eleonora Patacchini , Yves Zenou and Lung-Fei Lee (University of Colorado at Boulder - Department of Economics , Università di Roma "La Sapienza" , Stockholm University and Ohio State University (OSU) - Department of Economics) have posted Criminal Networks: Who is the Key Player? on SSRN. Here is the abstract:
We analyze delinquent networks of adolescents in the United States. We develop a dynamic network formation model showing who the key player is, i.e. the criminal who once removed generates the highest possible reduction in aggregate crime level. We then structurally estimate our model using data on criminal behaviors of adolescents in the United States (AddHealth data). Compared to other criminals, key players are more likely to be male, have less educated parents, are less attached to religion and feel socially more excluded. We also find that, even though some criminals are not very active in criminal activities, they can be key players because they have a crucial position in the network in terms of betweenness centrality.
Tuesday, July 3, 2012
Lisa Kern Griffin (Duke University - School of Law) has posted Inside-Out Enforcement (PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT, p. 110, Anthony S. Barkow, Rachel E. Barkow, eds., NYU Press, April 2011) on SSRN. Here is the abstract:
This chapter for a volume on "Prosecutors in the Boardroom" explores the collaboration between public criminal enforcers and private corporate actors, and some costs and benefits of those partnerships. When the government outsources investigative functions in corporate fraud cases -- such as employee interviews, forensic accounting, and compliance monitoring -- the boundaries between public and private roles can blur. There are advantages to that strategy given resource constraints and the complexity of corporate criminal investigations, but it also tends to exacerbate the piecemeal nature of enforcement. Furthermore, reliance on the private sector imports one of the most problematic features of regulatory relationships into criminal adjudication: the potential for self-dealing.
Herbert M. Kritzer (University of Minnesota Law School) has posted The Trials and Tribulations of Counting 'Trials' (DePaul Law Review, 2013) on SSRN. Here is the abstract:
This paper was prepared for the 2012 Clifford Symposium honoring Marc Galanter which was held at DePaul Law School. One aspect of Galanter’s recent work is on the phenomenon he labeled the “vanishing trial.” In this paper I examine the problems that arise when one seeks to count the number of trials. I show that the definition of a trial, other than a jury trial, is highly ambiguous. There are many trial-like events taking place in venues we do not label “courts.” Even in the court setting, and even for jury trials, there are vast differences in when a trial is counted. I show that there are at least several million trial-like events taking place in the United States annually, although the number of jury trials is small and has been declining in recent years. I conclude with a discussion of why we might care about how many trials occur and why the decline in the number of trials might reflect at least in part positive developments such as the professionalization of policing and the provision of legal counsel to criminal defendants in criminal cases and more economically rational behavior by litigants in civil cases.
Monday, July 2, 2012
Alec D. Walen (Rutgers School of Law, Camden) has posted Wrongdoing Without Motives: Why Victor Tadros is Wrong About Wrongdoing and Motivation (Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
Victor Tadros defends a subjective, intention-focused interpretation of the means principle (MP), according to which to use another as a means is to form plans or intentions in which the other serves as a tool for advancing one’s ends. My thesis here is that Tadros’s defense of the subjective interpretation of the MP is unsuccessful.
To make that case I argue, first, that the subjective interpretation would wrongly entail that someone who turned a trolley from five onto one, knowing that she was saving five, knowing that this act would be permissible if she were properly motivated, knowing that she is permitted not to turn the trolley if she doesn’t want to, but doing so in order to kill the one, is guilty of murder. Such loop-holing is morally odious, but it is not on a par with murder.
|1||567||Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right
Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,
University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,
Date posted to database: April 30, 2012 [3rd last week]
Joshua D. Blank, Nancy C. Staudt,
New York University School of Law, USC Law School,
Date posted to database: April 5, 2012 [9th last week]
|3||300||The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem
Lucian E. Dervan, Vanessa Edkins,
Southern Illinois University School of Law, Florida Institute of Technology,
Date posted to database: May 31, 2012 [new to top ten]
|4||212||Predictive Policing: The Future of Reasonable Suspicion
Andrew Guthrie Ferguson,
UDC David A. Clarke School of Law,
Date posted to database: May 2, 2012 [5th last week]
|5||195||Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community
Steven H. Resnicoff,
DePaul University College of Law,
Date posted to database: June 2, 2012 [new to top ten]
|6||178||The Nature and Purpose of Evidence Theory
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: May 16, 2012
|7||168||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 [10th last week]
|8||161||Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: June 7, 2012 [new to top ten]
|9||130||The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion
Robert J. Smith, Robert J. Smith,Justin D. Levinson,
DePaul University College of Law, The Charles Hamilton Houston Institute for Race and Justice , University of Hawaii at Manoa - William S. Richardson School of Law,
Date posted to database: April 25, 2012 [7th last week]
|10||125||The Oral Hearing in Competition Proceedings Before the European Commission
Wouter P. J. Wils, Wouter P. J. Wils,
European Commission, University of London - School of Law,
Date posted to database: May 3, 2012 [new to top ten]