CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, February 4, 2012

"Jones, the Automobile Exception, and the Warrant Requirement"

Orin Kerr has this helpful post at The Volokh Conspiracy. In part:

But it seems mistaken to me to suggest that the relevant Fourth Amendment precedents strongly point to requiring a warrant to install a GPS device. Under the automobile exception to the warrant requirement, that’s not where the relevant precedents most naturally point.

February 4, 2012 | Permalink | Comments (0)

Weisselberg and Li on The Rise of Corporate White-Collar Practices

Charles D. Weisselberg University of California, Berkeley -

Charles D. Weisselberg (pictured, right) and Su Li (University of California, Berkeley - School of Law and University of California, Berkeley- School of Law, Center for the Study of Law and Society) have posted Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms (Arizona Law Review, Vol. 53, p. 1221, 2011) on SSRN.  Here is the abstract: 

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

February 4, 2012 | Permalink | Comments (0)

Friday, February 3, 2012

Koehler on Revisiting a Foreign Corrupt Practices Act Compliance Defense

Mike Koehler (Butler University College of Business)

Mike Koehler (Butler University College of Business) has posted Revisiting a Foreign Corrupt Practices Act Compliance Defense (Wisconsin Law Review, Forthcoming) on SSRN.  Here is the abstract: 

This article asserts that the current FCPA enforcement environment does not adequately recognize a company’s good faith commitment to FCPA compliance and does not provide good corporate citizens a sufficient return on their compliance investments. This article argues in favor of an FCPA compliance defense meaning that a company’s pre-existing compliance policies and procedures, and its good faith efforts to comply with the FCPA, should be relevant as a matter of law when a non-executive employee or agent acts contrary to those policies and procedures and in violation of the FCPA. This article further argues that a compliance defense is best incorporated into the FCPA as an element of a bribery offense, the absence of which the DOJ must establish to charge a substantive bribery offense. 

Continue reading

February 3, 2012 | Permalink | Comments (0)

MacCoun and Reuter on Assessing Drug Prohibition and its Alternatives

Robert MacCoun and Peter H. Reuter (University of California, Berkeley - School of Law and University of Maryland) have posted Assessing Drug Prohibition and its Alternatives: A Guide for Agnostics (Annual Review of Law and Social Science, Vol. 7, pp. 61-78, 2011) on SSRN.  Here is the abstract: 

For decades, the debate over the merits of ending drug prohibition has carried on with little consequence. The recent near success of a cannabis legalization initiative in California suggests that citizens and politicians alike are more receptive to calls for change. We review basic research on deterrence and prices as well as emerging evidence on the potential empirical consequences of various alternatives to full prohibition, including depenalization, tolerated home cultivation, prescription regimes for cannabis and heroin, and retail sales of cannabis in Dutch coffee shops. The results are encouraging for advocates of these specific reforms, but the cases are inadequate for addressing the potentially more dramatic effects of full-scale commercial markets. The fundamental dilemma is that full legalization will probably reduce average harm per use but increase total consumption; the net effect of these two changes is difficult to project.

February 3, 2012 | Permalink | Comments (0)

Thursday, February 2, 2012

Piquero, Paternoster, Pogarsky and Loughran on Elaborating the Individual Difference Component in Deterrence Theory

Alex R. Piquero Raymond Paternoster Greg Pogarsky and Thomas Loughran (University of Texas at Dallas , University of Maryland , State University of New York (SUNY) - School of Criminal Justice and University of Maryland) have posted Elaborating the Individual Difference Component in Deterrence Theory (Annual Review of Law and Social Science, Vol. 7, pp. 335-360, 2011) on SSRN.  Here is the abstract: 

Deterrence theory and criminal justice policy hold that punishment enhances compliance and deters future criminal activity. Empirical research, however, is decidedly mixed, with some studies finding that punishment weakens compliance, some finding that sanctions have no effect on compliance, and some finding that the effect of sanctions depends on moderating factors. In this review, we do not consider whether sanctions affect compliance but instead consider the conditions under which sanctions affect compliance. Specifically, we focus on understanding the kinds-of-people dimension of sanctions and deterrence to include individual differences (in social bonding, morality, discount rate, impulsivity, social network position, decision-making competence) and situational differences (in emotions, alcohol/drug use). Upon reviewing the empirical evidence, we identify important gaps for theoretical and empirical work and comment on how this work relates to public policy.

February 2, 2012 | Permalink | Comments (0)

Provine on Race and Inequality in the War on Drugs

Doris Provine has posted Race and Inequality in the War on Drugs (Annual Review of Law and Social Science, Vol. 7, pp. 41-60, 2011) on SSRN.  Here is the abstract: 

Drug use is pervasive, generally private, and of long standing. The social effects are sometimes problematic, but it is a large step to declare a war on drug use. This review considers how that approach came to be adopted in the United States and why it persists despite its evident shortcomings. This war could not be maintained without societal racism and the manipulation of racial stereotypes to make drugs something to be feared. Beneath society's adherence to a failed criminalization approach is a startling indifference to its racial impact, which includes a vast increase in the number and representation of poor minorities in the prison system, particularly young African American males. Tracing the war on drugs to its roots reveals a broader domain in which harsh legislation, prosecution, and incarceration combine to harm and stigmatize minority populations, while a pervasive ideology of color blindness discourages serious discussion of inherent racial bias in the criminal justice system.

February 2, 2012 | Permalink | Comments (0)

Tuesday, January 31, 2012

Giessen on The Continued Erosion of Miranda's Protections

Michael L. Vander Giessen  has posted Berghuis v. Thompkins: The Continued Erosion of Miranda's Protections (Gonzaga Law Review, Vol. 46, No. 1, 2011) on SSRN.  Here is the abstract: 

In the forty-four years since the Supreme Court of the United States decided Miranda v. Arizona, the “procedural safeguards” set forth in that case have become ingrained in American law enforcement practices. However, subsequent Supreme Court decisions interpreting and applying Miranda have weakened its impact, causing some to question its significance and efficacy as a tool protecting suspects’ privilege against self-incrimination. The Court’s decision in Berghuis v. Thompkins continues this emasculating trend, first, by expressly heightening the standard necessary for suspects to invoke the right to remain silent and, second, by implicitly lowering the standard necessary to establish waiver. This comment focuses on how the Court reached its decision, what the Court ought to have decided, what negative impacts Berghuis may have on the American criminal justice system, and how those negative impacts may be limited.

January 31, 2012 | Permalink | Comments (0)

Stein on Services Fraud Offenses

Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law)

Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Corrupt Intentions: An Essay on Bribery, Unlawful Gratuity, and Honest-Services Fraud (Law and Contemporary Problems, Vol. 74, 2012) on SSRN.  Here is the abstract: 

This Essay develops an economic understanding of bribery, unlawful gratuity, and honest-services fraud offenses. Given the inherently transactional and private nature of these offenses, courts should elicit the parties’ intent from the economics of their exchange. When the exchange yields the parties a benefit not available on the open market, then - depending on the exchange’s particulars - it constitutes bribery, unlawful gratuity, or honest-services fraud. Based on this simple insight, I criticize the Supreme Court’s jurisprudence of criminal corruption.

January 31, 2012 | Permalink | Comments (0)

Fishing in the Park (Kolber)

The New York Times Metropolitan Diary raises the less familiar interpretive question: what does it mean to fish in the park?

-AJK

January 31, 2012 | Permalink | Comments (0)

Monday, January 30, 2012

Giessen on Legislative Reforms for Washington State's Criminal Monetary Penalties

Michael L. Vander Giessen  has posted Legislative Reforms for Washington State's Criminal Monetary Penalties (Gonzaga Law Review, Vol. 47, No. 2, 2012) on SSRN.  Here is the abstract: 

Balancing the present racial and ethnic disparities in Washington’s criminal justice system requires state legislators to carefully assess contributing factors and seriously consider sentencing reforms. One contributing factor can be found in the State’s laws governing criminal monetary penalties, known as legal financial obligations (“LFOs”). Many have criticized LFOs as creating de facto debtors’ prisons that disproportionately impact racial and ethnic minorities. These critics have also identified potential reforms but offered little practical guidance on how to implement them in Washington. As a complement to their work, this comment offers a discussion draft of proposed legislation. Specifically, this comment proposes that the Washington State Legislature alleviate the negative effects of LFOs by enacting legislation with four results: first, structuring the amount of nonrestitution LFOs to reflect the seriousness of the offense and the offender’s ability to pay; second, repealing the interest accrual on nonrestitution LFOs; third, reducing the annual interest rate on restitution LFOs from twelve percent to six percent; and finally, empowering the sentencing court to modify or convert nonrestitution LFOs when the offender’s financial circumstances change.

January 30, 2012 | Permalink | Comments (0)

Fershee on Increased Criminal Liability in Environmental Law

Joshua P. Fershee (University of North Dakota - School of Law)

Joshua P. Fershee (University of North Dakota - School of Law) has posted Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability after Deepwater Horizon (William & Mary Environmental Law and Policy Review, Vol. 36, No. 1, 2011) on SSRN.  Here is the abstract: 

Despite the potential appeal of dramatically increased liability and sentences in the wake of environmental disasters like the Deepwater Horizon oil blowout in the Gulf of Mexico, this Article argues that more aggressive criminal provisions and enforcement related to environmental harms, up to and including strict criminal liability, are not likely to protect the environment better or lead to safer work environments. This Article first considers the history and legality of, and the rationale behind, policies designed to make it easier to convict allegedly responsible parties and also discusses the pursuit of increased liability in relation to disaster-related and tragedy-related events in the financial and criminal sectors. The Article then discusses the use of reduced burdens and strict liability in environmental law in both civil and criminal contexts, and argues that the use of strict liability is less effective than a negligence standard because it tends to reduce penalties, which can limit the direct punishment to violators, as well as the prophylactic potential of the laws. Finally, the Article concludes that, rather than reducing mens rea standards and increasing criminal liability, U.S. energy and environmental law needs to focus on encouraging proper risk assessment and risk management to promote safe and effective energy extraction and production while encouraging and protecting both the environment and the economy.

January 30, 2012 | Permalink | Comments (0)

Sunday, January 29, 2012

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 394 Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
James Forman,
Yale University - Law School,
Date posted to database: November 29, 2011
2 271 How Law Protects Dignity
Jeremy Waldron,
New York University (NYU) - School of Law,
Date posted to database: December 17, 2011
3 230 Turning the Corner on Mass Incarceration?
David Cole,
Georgetown University Law Center,
Date posted to database: December 15, 2011
4 201 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
5 180 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
6 139 Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms
Charles D. Weisselberg, Su Li,
University of California, Berkeley - School of Law, University of California, Berkeley- School of Law, Center for the Study of Law and Society,
Date posted to database: January 11, 2012 [new to top ten]
7 132 Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences
M. Marit Rehavi, Sonja B. Starr,
University of British Columbia, University of Michigan Law School,
Date posted to database: January 16, 2012 [new to top ten]
8 97 False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary
Mark Godsey,
University of Cincinnati College of Law,
Date posted to database: January 12, 2012 [new to top ten]
9 89 Circumvention Tourism
I. Glenn Cohen,
Harvard Law School,
Date posted to database: December 1, 2011 [8th last week]
10 129 Revisiting a Foreign Corrupt Practices Act Compliance Defense
Mike Koehler,
Butler University College of Business,
Date posted to database: January 11, 2012 [new to top ten]

January 29, 2012 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 394 Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
James Forman,
Yale University - Law School,
Date posted to database: November 29, 2011
2 271 How Law Protects Dignity
Jeremy Waldron,
New York University (NYU) - School of Law,
Date posted to database: December 17, 2011
3 230 Turning the Corner on Mass Incarceration?
David Cole,
Georgetown University Law Center,
Date posted to database: December 15, 2011
4 201 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
5 180 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
6 139 Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms
Charles D. Weisselberg, Su Li,
University of California, Berkeley - School of Law, University of California, Berkeley- School of Law, Center for the Study of Law and Society,
Date posted to database: January 11, 2012 [new to top ten]
7 132 Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences
M. Marit Rehavi, Sonja B. Starr,
University of British Columbia, University of Michigan Law School,
Date posted to database: January 16, 2012 [new to top ten]
8 97 False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary
Mark Godsey,
University of Cincinnati College of Law,
Date posted to database: January 12, 2012 [new to top ten]
9 89 Circumvention Tourism
I. Glenn Cohen,
Harvard Law School,
Date posted to database: December 1, 2011 [8th last week]
10 129 Revisiting a Foreign Corrupt Practices Act Compliance Defense
Mike Koehler,
Butler University College of Business,
Date posted to database: January 11, 2012 [new to top ten]

January 29, 2012 | Permalink | Comments (0)