CrimProf Blog

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog:

Tuesday, Oct. 9

• Ryan v. Gonzales: Does 18 U.S.C. § 3599(a)(2) “which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys" entitle a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?
  
• Tibbals v. Carter: 1) Whether capital prisoners possess a “right to competence” in federal habeas proceedings under Rees v. Peyton; and 2) whether a federal district court can order an indefinite stay of a federal habeas proceeding under Rees.

Wednesday, Oct. 10

• Moncrieffe v. Holder: Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.
  

Friday's criminal law/procedure cert grants

Issue summaries are from ScotusBlog:

• Alleyne v. U.S.: Whether this Court’s decision in Harris v. United States, holding that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled.
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Milhizer on the Fourth Amendment Exclusionary Rule

Eugene R. Milhizer (Ave Maria School of Law) has posted Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule (Military Law Review Vol. 211, pp. 211-262) on SSRN. Here is the abstract:

In this article, I undertake to debunk five great myths about the Fourth Amendment Exclusionary Rule. First, I debunk the myth that the contemporary exclusionary rule is constitutionally required in order to achieve several objectives, which include but are not limited to deterring future police misconduct. Second, I discredit the assertion that even if the rule is intended only to deter future police misconduct, it is justified because it efficiently accomplishes this objective. Third, I disagree with the contention that even if the present rule is too inefficient in deterring future police to justify its continuation, it can be sufficiently improved by a modification that accounts for the seriousness of the crime or the dangerousness of the criminal. Fourth, I oppose the argument that even if deterrence is insufficient to justify the rule, the rule’s objectives can be expanded to encompass and promote noble aspirations beyond police deterrence, which thereby justify the rule. Fifth and finally, I dispute the moral claim that even if none of the utilitarian justifications for the rule are sufficient, the rule is needed to preserve the integrity of the criminal justice system. Based on all the foregoing, I conclude that the exclusionary rule should be rescinded and replaced with an approach that punishes those who violate the Fourth Amendment while avoiding actions, such as suppression, which can frustrate justice by undermining the efficacy and legitimacy and the criminal trials.

Bedi on Facebook and Third-Party Doctrine

Monu Singh Bedi (DePaul University College of Law) has posted Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

Do communications over social networking sites such as Facebook merit Fourth Amendment protection? The Supreme Court has not directly answered this question and lower courts are not in agreement. The hurdle is the Third Party Doctrine, which states that a person does not have a reasonable expectation of privacy to any communication she voluntarily discloses to a person or entity. All internet communications (e.g. status updates, photos, emails) are stored on third party servers or internet service providers (ISPs) and thus would seemingly lose Fourth Amendment protection, allowing the government to obtain the information from the server without first securing a warrant supported by probable cause.

Numerous scholars, have weighed in on the issue — analyzing the nature of the communication or the entity to which the information is disclosed — in an effort to show that these communications continue to merit Fourth Amendment protection despite this disclosure. These scholars have understandably focused on internet communications qua communications but, in doing so, have largely ignored the overall effect of communications over social networking sites such as Facebook.

This article steps outside traditional Fourth Amendment scholarship and relies on the concept of interpersonal privacy rights, embodied by substantive due process, equal protection, and First Amendment principles, as way to protect communications over social networking platforms such as Facebook from unwarranted government intrusion. This type of privacy has a history apart from the Fourth Amendment and focuses on the value of interpersonal relationships and the bonds therein. This article interprets the relevant cases collectively and broadly and makes the argument that the concept of interpersonal privacy should apply to social networking relationships over the internet when assessing whether the constituent communication merits privacy protection. Social scientists have recognized that these relationships share the same qualitative structure and can be just as “real” as their face-to-face counterparts. This analysis provides a new way to apply the reasonable expectation of privacy test under the Fourth Amendment — one that avoids the common pitfalls associated with the Third Party Doctrine.

Lave on Recidivism in Child Molesters

Tamara Rice Lave (University of Miami, School of Law) has posted Inevitable Recidivism: The Origin and Centrality of an Urban Legend (International Journal of Law and Psychiatry, Vol. 34, p. 186, April 2011) on SSRN. Here is the abstract:

This paper examines the pervasive conviction that sex offenders – particularly child molesters – will continue to re-offend. This belief in inevitable recidivism turns out to be absolutely essential to both the justification for, and the structure of, the sexually violent predator laws. When actual evidence of sex offender recidivism is examined, however, a huge gap exists between what is assumed and what the data actually show because most sex offenders do not in fact re-offend. Thus there is a galaxy of sexually violent predator laws and an entire branch of Supreme Court jurisprudence that is founded upon a demonstrable urban legend.

Schotter on Prisons for Profit

Geoffrey Schotter has posted Prisons for Profit: A Look at Prison Privatization (American Civil Liberties Union of Ohio, April 2011) on SSRN. Here is the abstract:

The economic downturn has resulted in a budget crisis for Ohio, as it has for other states, and out-of-control prison costs have emerged as a key concern. The ACLU of Ohio has been a forceful proponent of sentencing reform where policymakers may save taxpayer dollars and help create a more just society. Governor John Kasich’s new budget plan includes a sweeping overhaul of Ohio’s Department of Rehabilitation & Correction. The proposal includes common-sense sentencing reforms that would help ease our overcrowded prison system. Unfortunately, the proposed budget also includes a plan to sell five state correctional facilities to “prison for profit” operators like Corrections Corporation of America and contract with those companies to house inmates in them. Privatizing state prisons may in fact undermine sentencing reform’s goal to remove low- level offenders from the justice system.

Prisons for profit are different from public institutions because they must generate revenues for their shareholders. As a result, they have a direct interest in ensuring that Ohio’s prison system stays full to maximize its profitability.

This is not the first time prison privatization has been proposed as a cost-saving measure for Ohio taxpayers. In the 1990s, Ohio experimented with a private penitentiary in Youngstown that resulted in serious safety and fiscal concerns. Currently, the state has limited private facilities to Northcoast Correctional Facility and Lake Erie Correctional Facility, which hold inmates with minimal health and behavioral issues. Legislators are taking steps to correct our broken prison system, but privatization will negate this important work.

This report seeks to explore the many problems that plague prisons for profit, in the areas of fiscal efficiency, safety, contributions to the community, accountability and effect on recidivism. 

Bandes on "Quality of Life" Policing and the Fourth Amendment

Susan A. Bandes (DePaul University - College of Law) has posted The Challenges of 'Quality of Life' Policing for the Fourth Amendment (THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW, Cambridge University Press (Song Richardson & John Parry, Eds., 2013, Forthcoming)) on SSRN. Here is the abstract:

In New York City in the last several years, record numbers of people, overwhelmingly non-white, have been stopped and frisked by police. Only very rarely did those stops and frisks lead to discovery of a weapon or contraband. Only a small minority led to an arrest or summons. Even among those arrested, a miniscule number actually went to trial where the legality of the police conduct could be tested. In short, under the current Fourth Amendment framework, most of that police activity was never subjected to any judicial scrutiny, either before or after it occurred, to determine whether it was legally authorized or legally carried out.

The Fourth Amendment framework currently in use to control police discretion relies heavily on the courts, both to enforce before-the-fact limits like probable cause, reasonable suspicion and the warrant requirement, and to impose the primary after-the-fact remedy of exclusion. This article argues that the current framework is ill-suited to the task of regulating aggressive policing regimes. One basic problem with the current judicial framework for regulating police-citizen interactions is that on the whole, the Supreme Court’s Fourth Amendment jurisprudence is atomistic. It is focused on resolving individual disputes between law enforcement and individual suspects. This individualized focus is poorly suited to identifying and addressing shared harms, such as the effects of aggressive policing regimes on the quality of life of entire neighborhoods, or the injuries inflicted when the burden of police intrusion falls most heavily on certain racial or ethnic or economic groups, or the widespread intrusions authorized by the use of criminal law to regulate minor infractions, or the increasing number of so-called ‘special needs’ searches that require no individualized suspicion of wrongdoing. Second, the atomistic focus is poorly suited to addressing shared causes of harm. Fourth Amendment jurisprudence has yet to grapple with policing as an institution, or with the complex web of judicial, legislative, administrative and other institutions that influence policing.

The problem of police culture and police incentives is system-wide and must be addressed systemically. The courts, left to their own devices, cannot achieve this sort of reform. It requires some serious rethinking — both about how the courts can be brought back into the equation, and about what other institutions besides the courts should be doing to protect Fourth Amendment rights. 

Berman on Attempts

Mitchell N. Berman (University of Texas School of Law) has posted Attempts, in Language and in Law on SSRN. Here is the abstract:

On what grounds does the law punish attempted offenses? The dominant answer is that the law punishes attempts to commit an offense precisely because they are attempts (extra-legally), and it is true as a general moral principle that if one should not X, one should not attempt to X. If this is right, then the proper contours of the law of attempts should track the contours of what are attempts (extra-legally). At least to a first approximation, that is, law should track metaphysics. Call this the “Attempt Theory” of attempt liability. Gideon Yaffe’s recent book, "Attempts," is a rigorous and philosophically sophisticated critical analysis of attempt law predicated on just this foundational assumption — the assumption, to repeat, that attempts to commit an offense should be criminalized because they are attempts as a pre-legal or extra-legal matter.

However, there is another possible answer to the question. Possibly, those things that are in fact attempts are properly criminalized not because they are attempts, but because the best reasons for criminalizing the complete or “perfect” offense are also good reasons to criminalize this conduct, and there are no compelling reasons, of policy or justice, not to. We can call this the “Underlying Reasons Theory” of attempt liability. The Underlying Reasons Theory does recognize that there are things in the world that are attempts and that one who attempts to do what the criminal law forbids should be punished. It just maintains that the fact that an actor attempted to commit an offense is not, strictly speaking, what justifies our punishing her.

This short review of Yaffe’s book explicates the difference between the Attempt Theory and the Underlying Reasons Theory as approaches to criminal liability for what we presently call “attempts.” In a nutshell: paradigmatic attempts would be criminalized on both accounts, but the Underlying Reasons Theory is likely to endorse criminalization of some conduct that the Attempts Theory would not. This paper advocates the Underlying Reasons Theory and argues that we can and should assess the proper scope of “attempt law” without working through the metaphysics of attempts. 

Henning on Corporate Crime

Peter J. Henning (Wayne State University Law School) has posted Making Sure 'The Buck Stops Here': Barring Executives for Corporate Violations (University of Chicago Legal Forum, Forthcoming) on SSRN. Here is the abstract:

There have been persistent complaints about managerial accountability since the advent of the financial crisis in 2008, especially the lack of criminal prosecutions of senior executives. In contrast, there is widespread criticism of “overcriminalization” and the use of criminal punishments to accomplish what are viewed as regulatory goals, such as corporate compliance. So while there is frustration at the lack of prosecutions, there are complaints that there are too many prosecutions. The criminal law is a poor means to engage in oversight of corporate governance, especially of senior managers who are largely insulated from day-to-day decision-making that often triggers violations. In this article, I offer a modest means to police management of public companies and large investment firms by enhancing the authority of the Securities and Exchange Commission to seek the removal of executives when the company has engage in persistent or serious misconduct, even if the individuals were not directly implicated in a violation. This authority already exists in a limited form in certain industries, and a wider application of it could be a way to address concerns about managerial accountability for corporate criminal conduct.

Richardson on Police Efficiency and the Fourth Amendment

L. Song Richardson (University of Iowa - College of Law) have posted Police Efficiency and the Fourth Amendment (Indiana Law Journal, Vol. 87, p. 1143, 2011) on SSRN. Here is the abstract:

Much of our Fourth Amendment jurisprudence is premised upon a profound misunderstanding of the nature of suspicion. When determining whether law enforcement officers had the reasonable suspicion necessary to justify a “stop and frisk,” courts currently assume that, in any given case, the presence or absence of reasonable suspicion can be determined objectively simply by examining the factual circumstances that the officers confronted. This article rejects that proposition. Powerful new research in the behavioral sciences indicates that implicit, nonconscious biases affect the perceptions and judgments that are integral to our understanding of core Fourth Amendment principles. Studies reveal, for example, that many people regard ambiguous actions performed by non-Whites as suspicious, but regard Whites’ performance of those same actions as innocuous. Empirical evidence also demonstrates that officers vary in their ability to overcome implicit biases. Utilizing the behavioral realism framework, this article considers whether courts should supplement their objective, fact-centered approach to stop and-frisk cases with one that is more officer-centric. Rather than treat reasonable suspicion as something that either is or is not objectively provoked by a given case’s facts, this article explores whether courts should place a heavy emphasis on each officer’s “hit rate”— the rate at which an officer has successfully detected criminal activity when conducting stop and frisks in the past. This move, combined with a more robust articulation requirement, may better protect Fourth Amendment norms.

Capers on Rape Shield Laws

I. Bennett Capers (Brooklyn Law School) has posted Real Women, Real Rape (UCLA Law Review, Vol. 60, 2013) on SSRN. Here is the abstract:

There are several reasons to find rape shield laws troubling. From the point of view of many defense lawyers and civil libertarians, rape shield laws, by curtailing a defendant’s ability to offer evidence of an accuser’s prior sexual conduct, unfairly circumscribe a defendant’s right to confront witnesses and present relevant evidence in his defense. By contrast, rape shield proponents argue that rape shield laws are too weak, and are so riddled with exceptions that they amount to little more than sieves. “Real Women, Real Rape” calls attention to two other problems with rape shield laws, problems which can be traced to the very enactment of rape shield laws, but for the most part have remained hidden, unnoticed, and unremarked upon. The first problem concerns the expressive message implicitly communicated by rape shield laws: that jurors should assume the complainant is a “good girl” and thus deserving of the law’s protection. Because of rape shield laws, any suggestion that women may lead healthy sexual lives is quietly pushed to the side and corseted. In short, the concern is that in pushing for rape shield laws, feminists, victim rights advocates, and prosecutors have reinscribed the very chastity requirement they hoped to abolish. The second problem is what I term expressive message failure, and occurs when a rape shield’s message conflicts with pre-existing rape scripts, those assumptions we have about what rapists look like, what constitutes rape, and most importantly here, what rape victims look like. The article sketches out solutions to these specific problems, and gestures towards a broader solution to tackle other flaws with rape shield laws.

Argument transcript in habeas case

The transcript in Johnson v. Williams is here.

Laurin on Forensic Science Reform and Oversight

Jennifer E. Laurin (University of Texas School of Law) has posted Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight (Texas Law Review, 2013) on SSRN. Here is the abstract:

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases. By broadening our understanding of how forensic science is created and used in criminal cases -- by adopting a systemic perspective -- the Article points to a raft of yet unaddressed issues concerning the meaning of scientific integrity and reliability in the context of investigative decisions that are by in large committed to the discretion of decidedly unscientific actors. Critically, the Article demonstrates that systemic dynamics affecting upstream use of forensic science might well undermine the reliability-enhancing goals of the reforms advocated by the National Academy Report. As the NAS Report begins to set the agenda for active conversations around legislative and executive action to reform forensic science, it is critical to consider these questions. Moreover, the Article suggests that the embrace of science as a unique evidentiary contributor within the criminal justice system problematizes some of the bedrock assumptions of American criminal procedure that have, to date, prevented more robust doctrinal intervention in the investigative stages and decisions that the Article explores.

Osler on the Pardon Power as a Biblical Value

Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History (University of St. Thomas Law Journal, 2013, Forthcoming) on SSRN. Here is the abstract:

The United States Constitution is a strikingly secular document, and claims that the United States was founded as a “Christian Nation” find little support there. However, the majority of Americans are Christian, and it should not be surprising that many of them look for a reflection of their faith’s values in the government that is structured by that secular Constitution.

This article urges that those who seek Christian values in the government processes allowed by the secular Constitution pay greater attention to the neglected pardon clause.

The exercise of mercy is a fundamental Christian imperative, and the idea of pardon is an important and compelling theme in the gospels themselves: Jesus was nearly granted clemency by Pilate, and Jesus himself grants a pardon to the woman who is about to be executed in John 8. To the serious scholar who believes in both the imperatives of Christ and the secular limitations of the Constitution, the pardon power provides a rare instance of those roads running together.

Bennardo on Aggregate Grouping under the U.S. Sentencing Guidelines

Kevin Bennardo (LSU Paul M. Hebert Law Center) has posted A Quantity-Driven Solution to Aggregate Grouping under the U.S. Sentencing Guidelines Manual on SSRN. Here is the abstract:

The United States Sentencing Guidelines Manual mandates the grouping of many multiple counts of conviction on an aggregate basis. In these instances, the Guidelines aggregate a specific quality of the multiple counts — often the amount of drugs or money — and determine the punishment based on the aggregated quantity. 

This article first undertakes a review of the purposes of grouping under the Guidelines and concludes that grouping under the Guidelines’ other grouping provisions should precede grouping on an aggregate basis in order to minimize the influence of prosecutorial charging decisions.

Second, the article analyzes the text, commentary, and effect of the aggregate grouping guideline and concludes that aggregate grouping is only appropriate when the offense level determination is based primarily on quantity or some other aggregable quality of the offense. Next, the article formulates a mathematical ratio by which to test whether the offense level for an individual offense guideline is determined based primarily on an aggregable or non-aggregable quality of the offense. The ratio is then applied to every offense guideline in the Manual as well as to the distribution of each controlled substance and listed chemical. This data is reproduced in a series of appendices. The article highlights anomalies in the data and identifies the specific offense guidelines that are improperly either subjected to or excluded from aggregate grouping under the current scheme. Lastly, in an appendix, the article sets forth the text of a proposed revised aggregate grouping guideline.

Schuck on Immigrant Criminals in Overcrowded Prisons

Peter H. Schuck (Yale University - Law School) has posted Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy on SSRN. Here is the abstract:

Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used). At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system. The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use). The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.

O'Brien & Grosso on North Carolina, Race, and the Death Penalty

Barbara O'Brien and Catherine M. Grosso (Michigan State University - College of Law and Michigan State University - College of Law) have posted Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go Where the McCleskey Court Wouldn’t (Michigan State Law Review, Vol. 2011, No. 3, 2011) on SSRN. Here is the abstract:

In McCleskey v. Kemp, the United States Supreme Court rejected the use of statistical evidence of racism in the criminal justice system to show a violation of the Equal Protection Clause. If states are seeking or imposing the death penalty in a racially disparate manner, the Court noted, that is a matter for state legislatures to address. More than twenty years later, North Carolina heeded this suggestion and passed the Racial Justice Act of 2009 (RJA). North Carolina was only the second state to pass legislation in response to the McCleskey decision despite numerous local and federal efforts to pass a racial justice act. Kentucky passed similar legislation in 1998, but the Kentucky law provides for only an almost fatally narrow claim. In this respect, North Carolina stands alone in providing capital defendants a strong claim for relief based on statistical evidence that “race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.” 

The paper considers why North Carolina passed the RJA when it did.

North Carolina (or any state) could have accepted the Court’s invitation to expand its inquiry into the role of race in its death penalty system at any point in the past two decades. North Carolina is hardly averse to capital punishment; it has more than 150 people on death row and dozens facing capital prosecutions. It has executed forty-three people since 1976. What changed over the past two decades to prompt the North Carolina General Assembly to pass a law of this scope and magnitude?

As a starting point, simple politics cannot explain it: the balance of power between Democrats and Republicans did not undergo a dramatic shift during the relevant time period. In addition, no evidence suggests that the influence of race in capital punishment has grown more pernicious since McCleskey, reaching a tipping point that forced legislators to act. Many studies have been done on the role of race in capital punishment in the years since McCleskey, including at least three studies in North Carolina. Most of these studies show that race of victim discrimination continues to play a role in many capital punishment systems. Likewise, evidence suggests that race continues to be a factor in jury selection. Yet, we are not aware of a single instance of legislative or judicial reform in response to a finding of race discrimination. We are aware of only one case prior to the passage of the RJA in which a defendant’s claim of race discrimination met with success. Indeed, the narrative on race and capital punishment has stagnated with each side repeating a well-practiced argument to little avail. 

So what changed in North Carolina? And, what can the remarkable passage of the RJA tell us about future efforts to address racism in capital punishment regimes or the criminal justice system? In Part II, we consider the litigation strategy that led to the landmark decisions in Furman v. Georgia (1972) and McCleskey v. Kemp (1987). While the primary goal of these movements was the abolition of capital punishment, a strong secondary goal concerned addressing the impact of race in criminal justice. This section contrasts the results of the litigation strategy to the RJA and highlights the ways the RJA expands opportunities to inquire into the role of race in criminal justice that exceed the limits of McCleskey v. Kemp. In Part III, we draw on the work of socio-legal scholars examining the ways in which social movement organizations have effected change in other domains, such as civil rights and environmental reform, to consider the strengths of a united social movement (the RJA movement) that emerged from the confluence of the North Carolina Legislative Black Caucus, the North Carolina branch of the National Association for the Advancement of Colored People (NAACP), and the wide group of organizations loosely organized under the umbrella of the North Carolina Coalition for a Moratorium (NCCM). The RJA movement was instrumental in passing the RJA. This social movement has drawn together a diverse array of associations and individuals interested in limiting the impact of race on the criminal justice system. We then look, in Part IV, at how the social and political landscape in North Carolina, and nationally, changed in the years preceding the RJA’s passage to understand how external changes may have facilitated North Carolina’s receptivity to reforms like a racial justice act. In Part V, we look more closely at key aspects of the 2009 campaign to pass a racial justice act. The racial justice act campaign, itself, provides useful information on RJA’s potential impact. In conclusion, we consider what the passage of the RJA may tell us about the potential for the RJA to succeed in opening a broader discussion on the role of race in capital punishment in North Carolina, concluding that there are reasons to be optimistic.

Anderson on the Criminalization of Insider Trading

John P. Anderson (Mississippi College School of Law)has posted Greed, Envy, and the Criminalization of Insider Trading on SSRN. Here is the abstract:

In October 2011, a U.S. District Court sentenced Raj Rajaratnam to 11 years in federal prison for insider trading. This was the longest sentence for insider trading in U.S. history, but it was significantly less than the 19 to 24-year term requested by the government. Such harsh prison terms (equal in some cases to those meted out for murder or rape) require sound justification in a liberal society. Yet jurists, politicians and scholars have failed to offer a clear articulation of either the economic harm or the moral wrong committed by the insider trader.

This article looks to fill this gap by offering a rigorous analysis of insider trading, its criminalization, and its punishment from multiple economic and moral perspectives. This analysis reveals that of the three forms of insider trading currently proscribed under Section 10(b) of the Securities Exchange Act, two are economically harmful and morally impermissible, but surprisingly one is not (Classical Non-Promissory Insider Trading, where the insider trades on material non-public information while having made no promise not to trade).

Having reached this conclusion, alternative justifications or explanations for criminalizing Classical Non-Promissory Insider Trading are explored.

Virtue theory is considered as offering an alternative justification for the criminalization of Classical Non-Promissory Insider Trading. In particular, the vice of greed is considered. It is concluded that while insider trading does often reflect the vice of greed, a moralistic contempt for this character flaw cannot justify the criminalization of otherwise morally innocent conduct because this would violate the firmly held liberal Harm Principle famously articulated J.S. Mill.

But even if the criminalization of Non-Promissory Classical insider trading cannot be justified, it remains for it to be explained. The socio-psychological theory of cognitive dissonance (as articulated by Dan Kahan and Eric Posner) is entertained as an explanation for how morally innocent conduct such as Non-Promissory Classical Insider Trading might first become criminalized and then later perceived to be immoral by a population. Under the theory, actors generally regarded as moral innocents may initially be targeted for punishment as scapegoats in the wake of a disastrous or harmful social event. Over time, to avoid cognitive dissonance between the belief that conduct is morally permissible and the act of punishing it, society’s shared belief in the moral permissibility of the conduct is simply dropped.

This theory of cognitive dissonance fails to explain, however, why Non-Promissory Classical insider traders would be targeted as scapegoats to begin with. The moralistic contempt for the vice of greed in insider traders (already discussed) offers one motivation, but the public’s own vice of envy concerning the easy money made by insiders may offer another. Since neither motivation supplies a justification for criminalization in a liberal democracy, and since envy in particular has its own harmful effects on society, the Article concludes on the cautionary note that we should perhaps rethink our laws and reconsider our attitudes concerning Non-Promissory Insider Trading.

Papachristos & Wildeman on Social Networks and Homicide Victimization

Andrew V. Papachristos and Christopher Wildeman (Yale University - Department of Sociology and Yale University - Department of Sociology) have posted Social Networks and Risk of Homicide Victimization in an African American Community on SSRN. Here is the abstract:

This study estimates the association of an individual’s position in a social network with their risk of homicide victimization across a high crime African American community in Chicago. Data are drawn from five years of arrest and victimization incidents from the Chicago Police Department. Results indicate that the risk of homicide is highly concentrated within the study community: 41 percent of all gun homicides in the study community occurred within a social network containing less than 4 percent of the neighborhood’s population. Logistic regression models demonstrate that network-level indicators reduce the association between individual-level risk factors and the risk of homicide victimization, as well as improve overall prediction of individual victimization. In particular, social distance to a homicide victim is negatively and strongly associated with individual victimization: each social tie removed from a homicide victim decreases one’s odds of being a homicide victim by approximately 57 percent. Findings suggest that understanding the social networks of offenders can allow researchers to more precisely predict individual homicide victimization within high crime communities. 

Davis on US Regulation of Foreign Bribery

Kevin E. Davis (New York University (NYU) - School of Law) has posted Why Does the United States Regulate Foreign Bribery: Moralism, Self-Interest, or Altruism? (NYU Annual Survey of American Law, Vol. 67, No. 3, 2012) on SSRN. Here is the abstract:

This short essay traces the legislative history of the Foreign Corrupt Practices Act and its amendments to examine the influence of three distinct motivations: moralism, (economic) self-interest and altruism. The legislative history suggests that moralism and self-interest played the most significant roles in influencing the provisions of the original Act and its 1988 Amendments. Since then altruism has played a more prominent role in shaping the FCPA and other initiatives aimed at foreign bribery. The essay concludes by discussing the potential tension between self-interest and altruism and ways in which it might be resolved.