October 27, 2012
Meyer on Suffering and Judging
Linda Ross Meyer (Quinnipiac University School of Law) has posted Suffering and Judging in The Princess and the Pea (Quinnipiac Law Review, Vol. 30, p. 489, 2012) on SSRN. Here is the abstract:
This brief essay explores Hans Christian Andersen's story "The Princess and the Pea" for how it illuminates issues of suffering, compassion, victimization, political leadership, and mercy.
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog:
Monday, Oct. 29
- Clapper v. Amnesty Int'l USA: Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.
Tuesday, Oct. 30
- Bailey v. U.S.: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
- Chaidez v. U.S.: Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.
Wednesday, Oct. 31
- Florida v. Jardines: Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
- Florida v. Harris: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
Yankah on Vice Crimes
Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue.Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially con- nected to law must first and foremost aim at addressing ‘‘legal vices,’’ vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which dis- connects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others.
October 26, 2012
Haugh on Applying Capital Mitigation Strategies to White Collar Cases
Todd Haugh (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases (American University Law Review, Vol. 62, 2012) on SSRN. Here is the abstract:
Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions — mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity — Kaczynski’s and Madoff’s plight at sentencing — may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing. In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history. Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence — 150 years in prison — for a nonviolent economic offense. Why were these two ultimately given the same sentence? And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?
The answer lies in how attorneys use sentencing mitigation strategies. This Article contends that federal white collar defendants have failed to effectively use mitigation strategies to lessen their sentences, resulting in unnecessarily long prison terms for nonviolent offenders committing financial crimes. The white collar defense bar has inexplicably ignored the mitigation techniques perfected by capital defense attorneys, and in the process has failed to effectively represent its clients. After discussing the development of the mitigation function in capital cases and paralleling it with the evolution of white collar sentencing jurisprudence, particularly post-Booker, this article will present seven key mitigation strategies currently used by capital defense teams and discuss how these strategies might be employed in federal white collar cases. The goal throughout this Article will be to highlight new strategies and techniques available in defending white collar clients and to enhance sentencing advocacy in federal criminal cases.
Shay on Illich on Prisons
Giovanna Shay (Western New England University School of Law) has posted Illich (Via Cayley) on Prisons (Western New England Law Review, Vol. 34, p. 351, 2012) on SSRN. Here is the abstract:
This Article considers whether, more than a dozen years after publication of Cayley’s book, "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.
October 25, 2012
Jones on Mobile Iris Scanning
Christopher Rutledge Jones has posted 'EyePhones': A Fourth Amendment Inquiry into Mobile Iris Scanning (South Carolina Law Review, Vol. 63, No. 925, 2012) on SSRN. Here is the abstract:
MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows the user to perform mobile iris scanning, fingerprinting, and facial recognition. Developed by BI2 Technologies, this device was recently made available to law enforcement agencies in America.
This article discusses the Fourth Amendment implications arising from the use of such a device, and asks whether a reasonable expectation of privacy exists in one's irises while in public spaces. The article explores past Supreme Court Fourth Amendment jurisprudence regarding the use of technology to enhance senses, abandonment, and the plain view doctrine in an attempt to determine when mobile iris scans would and would not be allowed by the Fourth Amendment.
The article also undertakes a state-specific analysis, asking whether the South Carolina Constitution offers any additional protection against the use of mobile iris scanners. Finally, the article raises a number of concerns regarding mobile iris scanners (and MORIS in particular), and offers suggestions for addressing the concerns.
Atiq on Folk Beliefs about Free Will
Emad Hanzala Atiq has posted The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Do recent results in neuroscience and psychology, that portray our choices as predetermined, threaten to undermine the assumptions about “free will” that drive criminal law? This Article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely-held folk beliefs about free will, beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation – a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.
Papachristos & Smith on Al Capone and Organized Crime
Andrew V. Papachristos and Chris M. Smith (Yale University - Department of Sociology and University of Massachusetts at Amherst, College of Social and Behavioral Sciences - Department of Sociology) have posted The Small World of Al Capone: The Embedded and Multiplex Nature of Organized Crime on SSRN. Here is the abstract:
Organized crime groups may or may not have some criteria for membership, but organized criminal activities seep into the legitimate spheres of society. We argue that it is at the boundaries of the underworld and the upper world where crime gets organized. Layers of embedded and multiplex relationships between criminals and non-criminals comprise Chicago’s Prohibition era organized crime network. This study draws a sample from our unique relational “Capone Dataset” on early 1900s Chicago crime, which we began compiling in 2008 from six archival sources. Using formal social network analysis techniques, this study explores an organized crime network of more than 4,000 relationships between 1,400 individuals. Our stepwise analysis moves from a bounded group of members of Al Capone’s Syndicate, to an embedded and multiplex network spanning criminal, personal, and legitimate spheres, to a small world graph test using simulated random and ERGM networks. We find that an organized crime network conceptualization that includes multiplex and embedded relationships beyond gang membership provides a more accurate and provocative picture of organized crime and has the properties of small world graphs. These findings have implications for future studies of organized crime networks, corruption, resilience, and vulnerability.
October 24, 2012
Johnson & Johnson on Bail
Marcia Johnson (pictured) and Luckett Anthony Johnson (Texas Southern University - Thurgood Marshall School of Law and affiliation not provided to SSRN) have posted Bail: Reforming Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County, Texas (Northwestern Journal of Law & Social Policy, Volume 7, Issue 1, Winter 2012) on SSRN. Here is the abstract:
Starting in the 1970s, the U.S. federal government and many state and local governments adopted “get tough” policies against crime. These new strict policy initiatives produced an explosion of incarceration in prisons throughout the country. They also impacted local jails as well, particularly in the numbers of persons detained pre-trial. This Article explores this phenomenon and its implications for local governments, as well as its unforeseen consequences on communities, particularly communities of color. The Article uses Harris County, Texas to exemplify the systematic problems resulting from the over-jailing of its citizens, particularly persons who are detained pre-trial. We attempt to show that with some changes to local policies and the development of new initiatives, Harris County could substantially reduce its jail population without increasing crime, at a substantial savings to the county in both monetary and human capital.
Vladeck on the Significance of Military Law
Stephen I. Vladeck (American University - Washington College of Law) has posted The Civilianization of Military Jurisdiction (THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW IN AMERICA, John T. Parry, Song Richardson, eds., Cambridge University Press, 2013) on SSRN. Here is the abstract:
Most discussions of current and future issues in American criminal law and procedure tend to ignore completely the role of the military in shaping that body of jurisprudence. Perhaps this lacuna reflects widespread - if tacit - acceptance of the maxim that 'military law is to law as military music is to music.' Or it may represent generations of lawyers inculcated with Justice Black’s oft-quoted characterization of the U.S. court-martial system as a 'rough form of justice.' Regardless, the assumption appears to be that there is little for true criminal law scholars to learn from judicial proceedings presided over by jurists - and juries - in uniform.
This chapter, part of a collection of essays on the future of criminal law in America, suggests that students and scholars of criminal law would do well to pay increasing attention to the military justice system, if for no other reason than to understand and appreciate the subtle but significant expansions of military jurisdiction over the past quarter-century to encompass a growing range of offenses or offenders previously subject to the exclusive jurisdiction of the civilian courts. To that end, Part I summarizes the evolution of court-martial jurisdiction, including the Supreme Court's 1987 decision in Solorio v. United States, holding that service members may be tried for any offense committed while in the military no matter its connection (or lack thereof) to their 'service,' and the recent decision by the Court of Appeals for the Armed Forces upholding the expansion of court-martial jurisdiction to also encompass at least some civilian contractors serving with or accompanying the armed forces in the field during 'contingency operations,' such as the U.S. deployments in Iraq and Afghanistan. Part II offers an analogous account of military commissions, documenting in detail the important expansion in the scope of their authority enmeshed within the Military Commissions Acts of 2006 and 2009, which largely untethered such tribunals' jurisdictional limits from the international laws of war. Indeed, although the D.C. Circuit recently held that such an expansion of military jurisdiction could not be applied retroactively, at least one judge expressly endorsed Congress's power to so provide going forward.
Part III steps back to consider the implications of these developments. Inasmuch as the civilianization of substantive military law has been seen largely as a positive development by courts and commentators, I do not think we can so quickly say the same thing about the civilianization of military jurisdiction. Although it might appear at first blush that the civilianization of substantive military law reduces the risks that might otherwise have followed from unduly expansive military jurisdiction, the chapter concludes by offering a structural defense of a principle first expressed by Justice Johnson almost 200 years ago - that, where military jurisdiction is concerned, Congress should be confined to 'the least possible power adequate to the end proposed.' Whether or not the civilianization of substantive military law has been a normatively desirable result, my thesis is that, in the long-term, the civilianization of military jurisdiction would be to the detriment of American constitutional law in general, and the constitutional rights of criminal defendants, in particular.
October 23, 2012
Keenan on Crawford in the Lower Courts
Dylan O. Keenan has posted Confronting Crawford v. Washington in the Lower Courts (Yale Law Journal, Vol. 122, 2012) on SSRN. Here is the abstract:
Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique with empirical evidence by presenting results from the first statistical analysis of post-Crawford Confrontation Clause cases. The results show that lower courts have emphasized two factors — the presence of a state actor and the presence of an injured party — to evaluate whether a statement is testimonial under Crawford. I then argue that these results are not ambiguous or contradictory but consistent with Crawford’s reasoning and the underlying purposes of the Confrontation Clause.
Rodenberg & Kaburakis on Sports Gambling
Ryan M. Rodenberg and Anastasios Kaburakis (Florida State University and Saint Louis University - John Cook School of Business - Department of Management) have posted Legal and Corruption Issues in Sports Gambling (Journal of Legal Aspects of Sport, 2013, Forthcoming) on SSRN. Here is the abstract:
On April 15, 2011, the federal government shut down the three largest online poker sites servicing the American market – Full Tilt Poker, PokerStars, and Absolute Poker/Ultimate Bet. The shutdown was subsequently labeled Black Friday in the mainstream press. In addition to seizing the assets of each of the aforementioned online poker operators, each affiliated website included stern notices from the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) informing visitors that certain gambling is illegal under federal law. Less than two months later, the online sports gambling industry was also subject to a federal-level enforcement action dubbed Blue Monday.
The Blue Monday indictments, released May 23, 2011, targeted a number of individuals and entities involved, at least tangentially, to online sports gambling. Ten sports gambling websites were shut down as a result. The indictments resulted from a two year multi-agency state and federal investigation that involved the creation and operation of an undercover payment processing firm that allowed law enforcement agents to interact directly with gambling organizations. An affidavit filed in conjunction with the indictment detailed intricate aspects of online sports betting and shed light on the lifeblood of internet-based sports gambling – payment processing, a prerequisite to any virtual portal accepting sports wagers from a remote location. Payment processing is a two-way street, with such processors collecting money from gamblers for their accounts and paying out winnings to gamblers upon request.
Citing cases dating back to the years following the Civil War, Major League Baseball’s anti-gambling stance has been described as a long-term crusade. A noted scholar described gambling as “the deadliest sin in sports.” The United States government’s move to criminalize operators servicing domestic sports gamblers wagering offshore highlights more than a century of tension between sports and gambling. Measuring the impact of gambling-related corruption on the integrity of sports has also been addressed. The unique role of gambling in the collegiate sports context has also been analyzed. From a lawmaking standpoint, a leading expert posited that “American policymakers have literally ceded sports betting to organized crime while the market continues to grow.” A near-apocalyptic view of gambling’s interaction with sports was summed up in a prominent 1986 Sports Illustrated article:
Nothing has done more to despoil the games Americans play and watch than widespread gambling on them. As fans cheer their bets rather than their favorite teams, dark clouds of cynicism and suspicion hang over games, and possibility of fixes is always in the air.
The purpose of this article was to analyze the legal and corruption-focused underpinnings of federal statutes that impact sports betting. One foci was on the Professional and Amateur Sports Protection Act (PASPA) in a post-internet world, where the scope and diversity of sports wagering differ markedly from the time PASPA was debated and enacted in the early 1990’s. The enforcement actions on Black Friday and Blue Monday, coupled with recent sports gambling-related litigation involving Delaware and New Jersey, have thrust PASPA and the other statutes back into the spotlight. The remainder of this article is organized as follows: Section II highlights relevant federal and state law, Section III focuses narrowly on PASPA, Section IV examines how corruption concerns have shaped federal legislation pertaining to sports gambling, Section V explains the resulting policy issues, and Section VI concludes with an outlook to the future.
October 22, 2012
Italian Seismologists Found Guilty! (Kolber)
Last year, I posted here and here about the manslaughter charges against Italian seismologists for failing to predict and adequately warn the public about the risk of an earthquake in the L'Aquila region of central Italy. There were some tremors in the area, but the seismologists did not predict it would lead to an imminent, major earthquake. There was, in fact, an earthquake in April 2009 that led to the deaths of over 300 people.
La Repubblica, the popular Italian newspaper, reports that the verdict affects seven members of the "Committee on Major risks" who were in office in 2009, and confirms the charges that they "provided false information" about the improbability of a strong seismic event on the night of April 6, 2009, which led to the deaths of 309 citizens. Prosecutors had asked for four years in prison, but a higher sentence of 6 was given. There's a video report here, but in Italian. The Telegraph notes that the scientists will also have to pay for the prosecution's legal costs. The decision is expected to create a profound chilling effect for scientists in Italy.
These results are surprising to say the least. I think the mainstream media in the U.S. will soon be paying a lot more attention to this case.
UPDATE: And speaking of liability for earthquakes, see this news report about how drilling for water in southern Spain may have contributed to the severity of an earthquake there last year.
Top-Ten Recent SSRN Downloads
|1||451||The Curious History of Fourth Amendment Searches
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: October 1, 2012 [2nd last week]
|2||306||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 [3rd last week]
|3||259||Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research
Keith A. Findley,
University of Wisconsin Law School,
Date posted to database: October 11, 2012 [new to top ten]
|4||183||'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 [6th last week]
|5||180||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||157||Standing Up for Mr. Nesbitt
Stephen W. Smith,
Texas Southern University - Thurgood Marshall School of Law,
Date posted to database: September 8, 2012 [7th last week]
|7||150||Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide
Daniel D. Langleben, Jane Campbell Moriarty,
University of Pennsylvania - School of Medicine, Duquesne University - School of Law,
Date posted to database: September 1, 2012 [new to top ten]
|8||137||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 [10th last week]
|9||125||Judith Shklar on the Philosophy of International Criminal Law
Date posted to database: September 20, 2012 [new to top ten]
University of Chicago Law School,
Date posted to database: August 30, 2012 [new to top ten]