January 21, 2012
Brickey on Corporate Criminal Liability
The principle that corporations can be held criminally responsible for crimes committed on their behalf has been well established in Anglo-American law for more than a century. After exploring the historical and theoretical underpinnings of this phenomenon together with the deterrent and retributive rationales for imposing criminal liability on corporations, this article examines Justice Department policies regarding the prosecution and punishment of corporate crime and how those policies are implemented in practice.
Tuerkheimer on Breakups and Domestic Violence
Deborah Tuerkheimer (DePaul University - College of Law) has posted The Legal Meaning of Breakups: A Theory of Imputed Consent on SSRN. Here is the abstract:
The law’s conceptualization of violence within and without relationship is unjustifiably bifurcated. Before the breakup, abuse is defined as episodic and purely physical, leaving ongoing patterns of control untouched. This transactional approach to crime abruptly shifts at the moment of separation. Once relationships are deemed over, abuse is transformed to stalking and an entire course of conduct is brought within the law’s reach. The law’s discrepant treatment of pre- and post-separation violence is particularly striking when juxtaposed with the realities of violence between intimates. The latest social science research exposes the domestic violence/stalking distinction as artificial, and the moment-in-time-breakup as fictional. The de facto separation requirement that I identify is therefore unsupported on empirical grounds. Instead, the legal meaning of breakups may best be explained by a tacit imputation of consent to women who remain in abusive relationships. On analysis, this attribution cannot be reconciled with the normative requirements of consent. Imposing on women a legal obligation to leave their abusers in order for injury to be recognized is therefore troubling. The Article defends the claim that relationship status should no longer construct crime.
January 20, 2012
Henderson on Inevitable Discovery and Computer Searches and Seizures
Stephen E. Henderson (University of Oklahoma College of Law) has posted What Alex Kozinski and the Investigation of Earl Bradley Teach About Searching and Seizing Computers and the Dangers of Inevitable Discovery (Widener Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper tells two stories. One concerns the investigation of a Delaware physician named Earl C. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems – both judicial and extra-judicial – of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Were I not asked to speak on computer searches in relation to the Bradley prosecution, I would likely never have combined them. Yet they share lessons about the practicalities of computers and their search that are worth telling.
In December of 2008, the Delaware State police submitted a warrant application to search Bradley’s medical office. The application was denied. In December of 2009, the police submitted a second application that was granted. The differences between those two applications are revealing, and demonstrate that police will often do better to leave out unnecessary boilerplate regarding computers than to cloud an otherwise straightforward application. The execution of the issued warrant is also revealing, and troubling, as is the judicial decision denying Bradley’s motion to suppress. The execution demonstrates a police attitude that is dismissive, and that could clearly benefit from better training. The judicial response, refusing to exclude evidence that incriminates an evil man, leaves little impetus for that training to occur and demonstrates the danger of applying the doctrine of inevitable discovery when the police fail to obtain a proper warrant.
Unlike that problematic physical search, the initial computer forensics search in the Bradley investigation could not have been more straightforward. But that is rare. It can be time consuming and perhaps even difficult to locate incriminating evidence stored on a computer, and this is where we can learn from Chief Judge Kozinski. In 2004, sitting by designation as a trial judge on the Central District of California, Kozinski was confronted with a defendant’s contention that because a computer contains so much private information, a search warrant should restrict a forensics examiner’s search methodology. Kozinski was unsympathetic. He criticized and rejected the defendant’s claim. But in 2008, Kozinski had a computer problem of his own. His home computer had a publicly accessible partition, and it was found to contain some interesting images, perhaps most memorable among them being naked women painted as cows. Lo and behold, in 2009, Kozinski authored a much more privacy protective decision for the en banc Ninth Circuit. Although that decision was relegated to a concurrence by his court in 2010, Kozinski’s renewed zeal for computer privacy demonstrates a genuine issue. At the same time, the court’s ultimate rejection of his solution, along with its rejection in sister circuits and other courts, correctly recognizes that it will require novel technologies before magistrates – and district courts ex post – can very meaningfully limit the execution of computer searches.
Williams on a Simple Threshold Model of Theft
I propose a simple threshold strategy model of theft in which all individuals draw theft opportunities from the same random distribution, while individuals di ffer in terms of their actual or perceived costs of theft. I estimate the model using data from the NLSY 1997 Cohort for the years 1997-2003 with a number of specifi cations, including a bivariate structural model. Across all estimations covariates that measure or are closely correlated with time preferences and impatience are strong predictors of theft while measures such as opportunity cost show little or no explanatory power. The assumption of a common distribution of opportunities is not contradicted by the data. Structural and count estimations support the conclusion that unobserved heterogeneity across individuals plays a substantial role. I uncover a previously unnoticed pattern: theft is very spiky in that the median thief is active for only a brief period of less than a year in adolescence or early adulthood. Theft thus appears to be substantially a phenomenon of high impatience individuals entering a temporary period of intensi fied risk-taking in adolescence. Finally, and in contrast to the predictions of the literature, the two count data models favored in cases of unobserved heterogeneity perform very differently, suggesting that using count models in tandem with binary models o ffers more insight than using count models in isolation.
January 19, 2012
Tusikov on Models of Organized Crime
Natasha Tusikov (Australian National University) has posted The Godfather is Dead: A Hybrid Model of Organized Crime (APREHENDIENDO AL DELINCUENTE: CRIMEN Y MEDIOS EN AMÉRICA DEL NORTE, p. 143 Graciela Martinez-Zalace, Susana Vargas Cervantes, and Will Straw, eds., Media at McGill, 2010) on SSRN. Here is the abstract:
A decades-long debate has raged globally among academics about how to define and classify organized crime, its activities, members, and organizing structures. This debate has inspired such interest because organized crime is an intangible concept with a wide range of activities and criminal capabilities, a diversity of participants, and different kinds of organizing structures. Law enforcement, however, has been largely absent from this discussion and is generally reluctant to participate in the construction of conceptual frameworks intended to strengthen our understanding of organized crime. Twenty two years ago, Grant Wardlaw (1989: 10) noted that conceptual frameworks are rudimentary in organized crime research. While our critical understanding of organized crime has evolved significantly, limited progress has been made in the development of formal models of organized crime and Wardlaw’s observation remains sadly current.
This article seeks to contribute to the literature of conceptual models of organized crime through a critique of past theories and the introduction of a hybrid model. The first part critiques the pluralist-ethnic and bureaucratic-hierarchical models that have traditionally shaped law enforcement’s conception of organized crime. The second part outlines the network, market, and enterprise models and then offers a new hybrid conceptual model. It then explores how this hybrid model can form a theoretical framework for a risk assessment methodology on organized crime.
Caianiello on the italian Public Prosecutor
Michele Caianiello (University of Bologna - Department of Juridical Sciences) has posted The Italian Public Prosecutor: An Inquisitorial Figure in Adversarial Proceedings? (TRANSNATIONAL PERSPECTIVES ON PROSECUTORIAL POWER, E. Luna, M. Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
The Italian prosecutor embodies a peculiar combination of official duties and actual practices: he is formally a member of the judiciary independent of the political branches; he is charged with impartial investigations of crime but is likely only to gather damning evidence; he serves as a party in the presentation of evidence at trial yet is empowered to act on behalf of the defendant after trial; and ultimately, he is bound to impose the court’s sentence. A prominent scholar once described the Italian Prosecutor using the oxymoronic term “impartial party.” Today, the prosecutor has become an inquisitorial figure in adversarial proceedings, the result of a long-term experiment in criminal procedure reform. In many ways, he remains a work in progress. This chapter will explore the background and function of the Italian prosecutor, noting along the way the ongoing issues of debate that will shape the future of the Public Prosecution Service.
January 18, 2012
Harris on Immigration and Local Law Enforcement
David A. Harris (University of Pittsburgh - School of Law) has posted Immigration and National Security: The Illusion of Safety Through Local Law Enforcement Action (Arizona Journal of International and Comparative Law, Vol. 28, 2011) on SSRN. Here is the abstract:
Despite efforts to reform immigration law in the 1980s and the 1990s, the new laws passed in those decades by the Congress did not solve the long-term problems raised by undocumented people entering the United States. The issue arose anew after the terrorist attacks of September, 2001. While the advocates for immigration crackdowns in the 1980s and 1990s had cast the issue as one of economics and cultural transformation, immigration opponents after 9/11 painted a different picture: illegal immigration, they said, was a national security issue. If poor farmers from Mexico and Central America could sneak into the U.S. across the southwestern border, so could potential terrorists. This "re-branding" of illegal immigration gained significant traction on the national level, but resulted in no federal legislation. The immigration debate has now moved to the state level, with the focus on state laws such as Arizona's SB 1070. These state laws have brought about something long sought by immigration opponents that they failed to attain in the national debates: local and state law enforcement agencies are now obligated to question people they stop about immigration status. While national security has not been the primary motivation of state lawmakers, the ironic result of these state laws will be a decrease in security against terrorists who might try to penetrate the land borders of the U.S.
Opinion excusing procedural default in habeas proceeding
The case is Maples v. Thomas. Justice Ginsburg wrote the opinion of the Court. Justice Scalia, joined by Justice Thomas, dissented.
January 17, 2012
Simons on Strict Liability in Grading Offenses
Kenneth W. Simons (Boston University - School of Law) has posted Strict Criminal Liability in the Grading of Offenses: Forfeiture, Change of Normative Position, or Moral Luck? (Oxford Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?
This paper offers a framework for analyzing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s “change of normative position” by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (a) is a risk intrinsic to the less serious crime or (b) is minimally foreseeable. The article also addresses the relevance of moral luck, i.e. the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading.
Robinson on Sexual Identity, Race, and Incarceration
Russell K. Robinson (University of California, Berkeley) has posted Masculinity as Prison: Sexual Identity, Race, and Incarceration (California Law Review, Vol. 99, p. 1309, 2011) on SSRN. Here is the abstract:
The Los Angeles County Men’s Jail segregates gay and transgender inmates and says that it does so to protect them from sexual assault. But not all gay and transgender inmates qualify for admission to the K6G unit. Transgender inmates must appear transgender to staff that inspect them. Gay men must identify as gay in a public space and then satisfactorily answer a series of cultural questions designed to determine whether they really are gay. This policy creates harms for those who are excluded, including vulnerable heterosexual and bisexual men, men who have sex with men but do not embrace gay identity, and gay-identified men who do not mimic white, affluent gay culture. Further, the policy harms those who are included in that it stereotypes them as inherent victims, exposes them to a heightened risk of HIV transmission, and disrupts relationships that cut across gender identity and sexual orientation. Thus, this Article casts doubt on the claim that the policy is intended to and actually protects gay and transgender inmates. Moreover, it interrogates the Jail’s failure to protect many other categories of inmates who have been shown to be vulnerable to sexual assault in jails, including those who are young, first-time offenders and those with disabilities. The Jail’s policy ultimately reflects and reinforces problematic social assumptions about masculinity, including the notion that gay men are not “real men.”
January 16, 2012
Love on Collateral Consequences of Padilla v. Kentucky
Margaret Colgate Love has posted The Collateral Consequences of Padilla V. Kentucky: Is Forgiveness Now Constitutionally Required? (University of Pennsylvania Law Review PENNumbra, Vol. 160, No. 113, 2011) on SSRN. Here is the abstract:
People who commit a crime and are brought before a court to be sentenced expect to face a prison term or at least probation, and perhaps a fine. They may expect to experience a degree of social opprobrium, the so-called “stigma of conviction.” They surely understand that having a criminal record is not career-enhancing. But they also probably think that at some point they will be able to pay their debt to society and return to its good graces. They are reinforced in their belief in the possibility of redemption by periodic reminders from our elected leaders: President George W. Bush called America “the land of second chance,” and President Obama famously called to congratulate the Philadelphia Eagles for letting Michael Vick walk directly from prison back into the team’s starting lineup.
But the reality for people of ordinary abilities is very different. For them, the so-called “collateral” consequences of conviction are numerous, severe, and very hard to mitigate. Moreover, because conviction-based dis-qualifications are generally imposed by statute or regulation rather than by a judge in open court, criminal defendants usually have no idea what is in store for them. While conventionally labeled as “civil,” collateral consequences are increasingly understood and experienced as criminal punishment, and never-ending punishment at that. In Padilla v. Kentucky, the Supreme Court suggested that these disproportionate, rigid, and largely secret penalties have constitutional limits. At one level, Padilla is about a lawyer’s duty to warn a client considering a guilty plea about the likelihood of deportation. At another, Padilla sends a shot across the bow of a justice system whose effects are increasingly felt in contexts over which courts have no control. Padilla gives new force to an argument that criminal offenders are entitled to a chance at forgiveness.
January 15, 2012
Top-Ten Recent SSRN Downloads
|1||350||Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
Yale University - Law School,
Date posted to database: November 29, 2011
|2||240||How Law Protects Dignity
New York University (NYU) - School of Law,
Date posted to database: December 17, 2011 [new to top ten]
|3||187||Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language
Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein,
Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 16, 2011 [previously 6th]
|4||183||Turning the Corner on Mass Incarceration?
Georgetown University Law Center,
Date posted to database: December 15, 2011 [new to top ten]
|5||165||Neuroscience, Normativity, and Retributivism
Michael S. Pardo, Dennis Patterson,
University of Alabama School of Law, European University Institute,
Date posted to database: December 6, 2011 [previously 4th]
|6||135||Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts
American University, Washington College of Law,
Date posted to database: November 23, 2011 [previously 9th]
|7||123||Adoption of the Responsibility to Protect
William W. Burke-White,
University of Pennsylvania - Law School - Faculty,
Date posted to database: November 16, 2011 [previously 8th]
|8||111||Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation
Alice J. Clapman,
University of Baltimore School of Law,
Date posted to database: November 21, 2011 [previously 10th]
|9||100||She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect'
Mark Godsey, Marie Alou,
University of Cincinnati College of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: November 17, 2011 [new to top ten]
|10||94||This is Not a Symposium on How to Commit Fraud - But, If it Were...
Date posted to database: November 18, 2011 [new to top ten]