October 20, 2012
"Disruptive Mood Dysregulation Disorder"
From Crime & Consequences:
Part of the concern is that kids are being diagnosed with bipolar disorder when they don't have it and given drugs that don't do any good. Trimming back on the rampantly overdiagnosed bipolar disorder would be a good thing overall. The problem, as all of us involved in criminal law know from long experience, is that any new diagnosis that is plausibly related to misbehavior will be seized upon as an excuse, misdiagnosed in people who do not have it for the purpose of evading deserved punishment for voluntary acts.
"Judge Will Issue Subpoenas for Trayvon Martin's School Records and Social Media Accounts"
I think this is the correct ruling. A defendant raising self-defense may introduce evidence regarding a victim's reputation for a particular character trait like violence to show that the defendant was not the initial aggressor, even if the defendant did not previously know about the victim's reputation.
October 19, 2012
"A Final Post on Hacking Back"Orin Kerr has this interesting final shot at The Volokh Conspiracy in a debate over the legality of hacking into the computer of someone who has already hacked into yours. Good stuff for a classroom discussion of the mens rea of burglary and the scope of the necessity defense.
Kamisar on Miranda
Yale Kamisar (University of San Diego School of Law) has posted The Rise, Decline and Fall (?) of Miranda (Washington Law Review, Vol. 87, No. 4, December 2012) on SSRN. Here is the abstract:
Miranda v. Arizona (1966) was the centerpiece of the Warren Court’s so-called revolution in American criminal procedure. But the Warren Court disbanded more than 40 years ago. And President Richard Nixon, who campaigned against the Warren Court, made four appointments to the U.S. Supreme Court.
Since then, led over the decades by Warren Burger, William Rehnquist and Antonin Scalia, the Court has seriously weakened Miranda in various ways. A good example is Berghuis v. Thompkins (2010), which allows the police to obtain a waiver of a custodial suspect’s rights after they have started to interrogate him.
There has been much talk lately to the effect that Miranda is dead or dying – or might as well be dead. Even some liberal commentators have concluded that the time has come to give Miranda a respectful burial and “move on.” But move on to what? Can Congress or the state legislatures be counted on to protect those suspected of, or arrested for, serious crimes?
October 18, 2012
"UN rights experts urge states to repeal criminal adultery laws"
The UN Working Group on discrimination against women [official website] on Thursday urged governments around the world to repeal laws that criminalize adultery[statement] and give rise to severe penalties which include flogging, death by stoning and hanging. While the working group conceded that "adultery may constitute a valid ground for bringing a civil proceeding" in some cultures and traditions, the assembly of individual experts wholly declared [press release] that such an offense should not be deemed criminal.
"A Town Abuzz Over Prostitution and a Client List"
From The New York Times:
For more than a year, the police have been investigating reports that the local Zumba instructor was using her exercise studio on a quaint downtown street for more than fitness training. In fact, the police say, she was running a one-woman brothel with up to 150 clients and secretly videotaping them as they engaged in intimate acts.
. . .
The case is somewhat complicated. The police say that by videotaping her clients, Alexis Wright, 29, the Zumba instructor, invaded their privacy and that the clients, in addition to being suspected perpetrators, are also thus victims.
That led to a convoluted court ruling that the names of the clients would be released but without further identifying information, like their addresses or dates of birth.
Ferzan on Tadros
Kimberly Ferzan has posted Professor Tadros' Wild Ride: Duty, Defense, Deterrence and the Criminal Law on Jotwell. In part:
Tadros started this book as a book on retributivism, and when he began writing, he visited a prison. And, seeing that stark, desolate, and sobering institution, Tadros sought to write a book that could justify to the incarcerated the suffering we impose on them. Tadros has put his agile, analytical mind to work to solve a problem that should be of central concern to all of us. And in that spirit, his work should be read and celebrated.
Dancig-Rosenberg & Gal on Restorative Criminal Justice
Hadar Dancig-Rosenberg and Tali Gal (Bar-Ilan University - Faculty of Law and School of Criminology, University of Haifa) has posted Restorative Criminal Justice (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
This Essay develops a model that integrates restorative justice within the conventional punitive system of criminal responsibility and punishment. Contrary to the conventional wisdom, we demonstrate that restorative justice should form a synergy with retributivism, deterrence, incapacitation, and other punitive goals of criminal law. We show how this synergy can be formed, illustrate its operation and identify its potential contribution to social welfare.
Findley on Shaken Baby Syndrome
Keith A. Findley (University of Wisconsin Law School) has posted Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research (Oklahoma City University Law Review, Vol. 37, No. 2, 2012) on SSRN. Here is the abstract:
This is the text of a talk given by Keith Findley as part of the Integris Law & Medicine Lecture Series at Oklahoma City University School of Law on September 27, 2011, with commentary by Dr. Patrick Barnes, Professor David Moran, and Professor Carrie Sperling. The talks address controversies that have arisen in the past ten or twelve years over the diagnosis Shaken Baby Syndrome (SBS) (now known also more expansively as Abusive Head Trauma (AHT)) and prosecution of individuals based on the hypothesis that the child was injured or died after an adult caregiver violently shook the child. The talks examine the science-dependent nature of prosecutions (or child removal actions) based on the shaking hypothesis, as well as emerging controversies from new medical research about whether shaking can cause such injuries and death, at least without causing extensive neck and cervical spine injuries; whether the indicators previously attributed almost exclusively to shaking -- such as subdural hematomas and retinal hemorrhages -- are indeed diagnostic of abuse; whether other causes, both natural and accidental, can mimic abuse and lead medical professionals astray; and whether the onset of clear neurological impairment can reliably be timed to the infliction of injuries so that the medical science can be used to identity the perpetrator (assuming there was one). This talk examines how the legal system is being called upon to re-examine SBS convictions in light of this evolving medical science.
October 17, 2012
Scott on Information Sharing at Sentencing
Ryan W. Scott (Indiana University Maurer School of Law) has posted The Skeptic's Guide to Information Sharing at Sentencing (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.
This Article takes a skeptical view of the information sharing model, arguing that it suffers from three fundamental weaknesses as an alternative to other structured sentencing reforms. First, there are information collection challenges. To succeed, the model requires sentencing information that is written, comprehensive, and representative. Due to acute time constraints, however, courts cannot routinely generate that kind of information. Second, there are information dissemination challenges. Sharing sentencing information raises concerns about the privacy of offenders and victims. Also, the volume and complexity of sentencing decisions create practical difficulties in making relevant information accessible to sentencing judges. Third, the model’s voluntariness is an important drawback. The information sharing model rests on the heroic assumption that judges will respond to information about previous sentences by dutifully following the decisions of their colleagues. That is unrealistic. Judges just as easily can disregard the information, ignore it, or even move in the opposite direction.
Despite those grounds for skepticism, information sharing can play a valuable role as a supplement to other sentencing reforms. In particular, information sharing would benefit from a system of sentencing guidelines, whether mandatory or advisory, and from open access to the information on the part of defense counsel and prosecutors.
Smits et al. on Criminal Justice in Hip-Hop Music
Jan M. Smits , Andrei Ernst , Steven Iseger and Nida Riaz (Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) , affiliation not provided to SSRN , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law on SSRN. Here is the abstract:
This article investigates how the law is perceived in hip-hop music. Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from 5 US artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz). After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.
October 16, 2012
O'Hear on Habeas and Effective Assistance
Michael M. O'Hear (Marquette University - Law School) has posted Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence on SSRN. Here is the abstract:
This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.
Slobogin on Rehnquist and Panvasive Searches
Christopher Slobogin (Vanderbilt University - Law School) has posted Rehnquist and Panvasive Searches (Mississippi Law Journal, 2012) on SSRN. Here is the abstract:
In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by Rehnquist, this essay, written for a symposium on Rehnquist and the Fourth Amendment, describes his views on the types of requirements the Fourth Amendment imposes on the police, how decriminalization can protect privacy, and most importantly, why Rehnquist might have been willing to regulate surveillance that is “panvasive” — pervasive and widespread — even if it focuses on public activities or information surrendered to third parties.
Bradley on Jeopardy and Blueford v. Arkansas
Craig Bradley (Indiana University Maurer School of Law) has posted What is Jeopardy? (Trial Magazine (Forthcoming)) on SSRN. Here is the abstract:
This article analyzes the 2012 case of Blueford v. Arkansas. Blueford was tried for murder for allegedly shaking his girlfriend’s baby to death. He claimed that it was an accident. He was tried for capital murder (death penalty waived), first degree murder, manslaughter and negligent homicide. The jury was told to consider the charges in order of seriousness, beginning with capital murder, and not moving on to first degree murder until it had reached a conclusion on capital murder, etc. After a time the jury announced that it could not reach a verdict. The judge asked the status of the case and the foreman announced that they had unanimously agreed that it was not capital murder or first degree murder but were hung 9-3 for conviction on manslaughter. After further consideration they were still hung and the judge declared a mistrial under “manifest necessity” without further discussing the status of the negotiations. The Court held that it was OK to retry Blueford for capital and first degree murder because, despite the foreman’s announcement, there had been no final resolution of those charges.
October 15, 2012
Clermont on Burdens of Proof and Multiple Claims
Kevin M. Clermont (Cornell University - School of Law) has posted Aggregation of Claims and Illogic on SSRN. Here is the abstract:
and probability theory produce in law the troublesome paradox of aggregation: On
the one hand, logic seems to tell us that the aggregated likelihood of
alternative claims elevates in response to probability’s rules; thus, if the
plaintiff almost proves claim A and almost proves an alternative but independent
claim B, then the plaintiff should win one. On the other hand, because the law
requires each claim to meet the standard of proof, and thus refuses to apply the
proof standard to the aggregation, the plaintiff loses in actuality; legal
scholars despair in consequence — including Ariel Porat and Eric Posner in their
new article Aggregation and Law.
Fuzzy logic, however, eradicates the aggregation paradox, by showing that the theories’ aggregated likelihood equals the most likely theory’s likelihood. The law is correct in applying this approach.
Bierschbach & Bibas on Notice-and-Comment Sentencing
Richard A. Bierschbach (pictured) and Stephanos Bibas (Yeshiva University - Benjamin N. Cardozo School of Law and University of Pennsylvania Law School) have posted Notice-and-Comment Sentencing (Minnesota Law Review, Vol. 97, No. 1, 2012) on SSRN. Here is the abstract:
As the real policymakers of criminal justice, prosecutors and other criminal-justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend. But they make those value-laden decisions out of sight, with little public input into or oversight of the tradeoffs involved. This gap between prosecutors as agents and the public as their principal leaves prosecutors free to pursue their own self-interests, risking arbitrary outcomes, endangering the legitimacy of criminal justice, and undercutting public confidence and respect. Administrative law has long grappled with similar issues, seeking to constrain and legitimate agency decisions made in the public interest by soliciting and responding to public input. But criminal justice has no comparable mechanisms for public participation.
We propose a system of “notice-and-comment sentencing,” modeled loosely on notice-and-comment rulemaking, to review the range of decisions that cash out at sentencing. That approach would provide the public with advance notice, solicit a broad range of views, require responses to significant criticisms, and elicit statements of reasons to ground appellate oversight. Notice and comment would operate at the wholesale level on prosecutors’ charging and plea-bargaining policies, as well as sentencing commissions’ guidelines and possibly police enforcement policies. It might also operate at the retail level within categories of especially significant crimes, soliciting factual information and possibly policy views about individual cases and creating feedback loops on the application of wholesale policies in concrete contexts. Notice-and-comment sentencing would not only better constrain agents and blend expert and lay perspectives, but also enhance legitimacy and increase public confidence in seeing justice done.
October 14, 2012
Top-Ten Recent SSRN Downloads
|1||526||Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps
Caleb E. Mason,
Southwestern Law School,
Date posted to database: August 13, 2012
|2||391||The Curious History of Fourth Amendment Searches
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: October 1, 2012 [new to top ten]
|3||281||Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart's Potential Exposure
Southern Illinois University School of Law,
Date posted to database: September 13, 2012 [2nd last week]
|4||185||A Technology-Centered Approach to Quantitative Privacy
David C. Gray, Danielle Keats Citron,
University of Maryland-Francis King Carey School of Law, University of Maryland - Francis King Carey School of Law,
Date posted to database: August 15, 2012 [3rd last week]
|5||172||Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century
Southern District of Texas,
Date posted to database: August 21, 2012
|6||168||'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures
Gary S. Becker, Francois Ewald, Bernard E. Harcourt,
University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago - Department of Political Science,
Date posted to database: September 5, 2012
|7||154||Standing Up for Mr. Nesbitt
Stephen W. Smith,
Texas Southern University - Thurgood Marshall School of Law,
Date posted to database: September 8, 2012
|8||139||The New Civil Death: Rethinking Punishment in the Era of Mass Conviction
Gabriel J. Chin,
University of California, Davis - School of Law,
Date posted to database: August 10, 2012
|9||136||Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform
Kristin N. Henning,
Georgetown University - Law Center,
Date posted to database: August 15, 2012 [10th last week]
|10||123||Social Networks and Risk of Homicide Victimization in an African American Community
Andrew V. Papachristos, Christopher Wildeman,
Yale University - Department of Sociology, Yale University - Department of Sociology,
Date posted to database: September 19, 2012 [new to top ten]