December 15, 2012
Roberts on Prison, Foster Care, and Black Mothers
Dorothy E. Roberts (University of Pennsylvania Law School) has posted Prison, Foster Care, and the Systemic Punishment of Black Mothers (UCLA Law Review Vol. 59, p. 1474, 2012) on SSRN. Here is the abstract:
This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each system inflicts on black communities, and the way in which their intersection in the lives of black mothers helps to make social inequities seem natural. I hope to elucidate how state mechanisms of surveillance and punishment function jointly to penalize the most marginalized women in our society while blaming them for their own disadvantaged positions.
December 14, 2012
Bean on the U.K. Bribery Act
Bruce W. Bean (Michigan State University - College of Law) has posted Further to Professor Alldridge's 'Caffeinated' Article: What 'Stuff' Did the Professor Have in Mind? (Ohio State Law Journal Furthermore, Vol. 73, p. 77, 2012) on SSRN. Here is the abstract:
Professor Peter Alldridge has published The U.K. Bribery Act: “The Caffeinated Younger Sibling of the FCPA,” in the Ohio State Law Journal. He deals with the extraordinary thirteen-year process that finally resulted in the U.K. Bribery Act 2010. Alldridge explains that the “highly politicised” nature of the process accounted for much of the delay.
In this brief Essay, I focus on what actually moved Parliament to act. While the Professor refers to “political happenstance” and explains that sometimes “Stuff, as Mr Rumsfeld reminded us, happens,” Alldridge does not explain any of this Rumsfeldian “stuff”.
After setting out the most significant provision of the Bribery Act, its strict liability corporate crime of failing to prevent a bribe, I utilize the legislative history of the Bribery Act to elaborate on how certain embarrassing events in Britain constituted the “stuff” that led to the elimination of the U.K.’s long-standing forgiving attitude toward overseas bribery.
Miller on Drug-Sniffing Dogs and Compulsory Process
Colin Miller (University of South Carolina School of Law) has posted Beware of the Diamond Dogs: Why a 'Credentials Alone' Conception of Probable Cause Violates the Compulsory Process Clause (Loyola University New Orleans Journal of Public Interest Law (Forthcoming)) on SSRN. Here is the abstract:
In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.
December 13, 2012
"Does the last decade add support for "more guns, less crime" claims?"Doug Berman at Sentencing Law & Policy excerpts this article from USA Today.
Torry & Weiss on Medication Noncompliance and Criminal Responsibility
Zachary Torry and Kenneth J. Weiss (Independent and University of Pennsylvania) have posted Medication Noncompliance and Criminal Responsibility: Is the Insanity Defense Legitimate? (Journal of Psychiatry & Law, Vol 40, Summer 2012) on SSRN. Here is the abstract:
Noncompliance with medication therapy and mental health care is prevalent among the mentally ill. Its multifactorial dynamics can include aspects of the illness itself, such as anosognosia. Noncompliance with medication can increase risk of violent or other criminal behavior, but the law currently does not recognize it as a factor in determining culpability. The legal test of insanity that focuses on a “defect of reason from disease of the mind” presumes that the disease was not self-induced. Noncompliance with medication and voluntary intoxication can both be seen as self-induced incapacities, but their adjudication is often quite different. A psychotic condition may be the basis of an excuse, whereas simple intoxication is not. The distinction is not only the obvious one of acts of omission (medication noncompliance) and acts of commission (voluntary intoxication). There are other complicating factors, such as the knowledge of the effects of noncompliance, the mental state prior to the noncompliance, and the presence of any conditions that would excuse or justify it. These and other considerations render the assignment of criminal responsibility for the noncompliant psychiatric offender complex. A possible solution to this would be the application of therapeutic jurisprudence to the noncompliant mentally ill offender.
"Court Finds Rights Violation in C.I.A. Rendition Case"
From the New York Times:
BERLIN — A German man who was mistaken for a terrorist and abducted nine years ago won a measure of redress on Thursday when the European Court of Human Rights ruled that his rights had been violated and confirmed his account that he had been seized by Macedonia, handed over to the C.I.A., brutalized and detained for months in Afghanistan.
In a unanimous ruling, the 17-judge panel, based in Strasbourg, France, found that Macedonia had violated the European Convention on Human Rights’ prohibition on torture and inhuman or degrading treatment, and ordered it to pay the man about $78,000 in damages. . . .
In another rendition case on Thursday, lawyers for a former Libyan dissident said he and his family had accepted a $3.5 million settlement from the British government, according to The Associated Press. The dissident, Sami al-Saadi, had sued the British government and its spy agency, MI6, saying that he had been abducted in Hong Kong in 2004 and sent to Libya, where he spent years in prison and was tortured. The rest of his family — his wife and four children — were also sent to Libya against their will.
Leong on Gideon's Law Protective Function
Nancy Leong (University of Denver Sturm College of Law) has posted Gideon's Law Protective Function (Yale Law Journal, Vol. 122, 2013) on SSRN. Here is the abstract:
Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the integrity of the development of the law by ensuring that the legal principles courts articulate are the product of a legitimate adversarial process. While law protection was not a central rationale for the outcome in Gideon, the decision’s reasoning and the surrounding historical context resonate with the concern for the integrity of judicial lawmaking. And an examination of subsequent cases reveals the influence of appointed counsel on the shape of the law. The guarantee of counsel, then, has significant benefits for courts’ lawmaking endeavor, and, indeed, serves as an independently sufficient rationale for the provision of counsel to indigent defendants. This alternative rationale for Gideon offers a justification for extending the entitlement to counsel to certain civil contexts that raise concerns similar to those present in the criminal context.
Brenner on Remote Computer Searches
Susan W. Brenner (University of Dayton - School of Law) has posted Law, Dissonance and Remote Computer Searches (14 University of North Carolina J.O.L.T. __ (2012), Forthcoming) on SSRN. Here is the abstract:
This article examines the conflict – the dissonance – that arises when law enforcement officers from one jurisdiction remotely search a computer that is physically located in another jurisdiction. It reviews the current status of remote computer searches in Europe, noting that such searches are legal under United Kingdom law but are, for most purposes, outlawed by German law.
The article then explains that because U.S. state supreme courts have used their constitutions to impose search and seizure requirements that exceed those of the Fourth Amendment, similar dissonance has arisen between U.S. states. It uses this domestic dissonance to analyze the issues transnational searches are likely to create and to consider how those issues might be resolved.
December 12, 2012
Olsson on Textualist Misinterpretation of the Sixth Amendment
The purpose and intent of the Sixth Amendment of the US Constitution has been repeatedly distorted by textualist misinterpretation, orchestrated by elements of the judiciary more concerned with preserving the power of government than the rights of individual defendants. As a result, it is hard to know what the Amendment stands for, since it has been successively re interpreted and, effectively, amended for at least the past 80 years and possibly longer. The author argues that it is time for courts to return to the spirit of the laws which actuated the Bill of Rights over two hundred years ago, and to jettison some of the judicial manglings of this most essential constitutional principle.
Schulze on Expressivism and "Stand Your Ground" Provisions
Louis N. Schulze Jr. (New England Law | Boston) has posted Of Trayvon Martin, George Zimmerman, and Legal Expressivism: Why Massachusetts Should Stand Its Ground on 'Stand Your Ground' on SSRN. Here is the abstract:
This essay suggests that the expressive impact of Stand Your Ground laws alters the shared norms governing our collective understanding of the moral limits of “self-defense.” The essay argues that the theory of Legal Expressivism can explain the widespread misunderstanding of the limits of self-defense, as demonstrated by the institutional and popular reactions to the killing of Trayvon Martin by George Zimmerman. To support this thesis, the piece briefly explains Stand Your Ground statutes and legal expressivism. It then details the nature of the expressive function of these statutes and asserts that Massachusetts, which recently considered the adoption of such a provision, should reject this change principally to rebuff the symbolic message these laws convey.
December 11, 2012
"Professor Frase guest-blogging on "Just Sentencing""Sentencing Law & Policy announces Professor Frase's series of posts "to discuss sentencing issues raised by his terrific new book titled "Just Sentencing: Principles and Procedures for a Workable System," which was just published by Oxford University Press and is available here."
Megale on the Briefs in Gideon
Elizabeth Berenguer Megale (Savannah Law School) has posted Gideon's Legacy: Taking Pedagogical Inspiration from the Briefs that Made History (Barry University Law Review, Forthcoming) on SSRN. Here is the abstract:
In honor of the fiftieth anniversary of the Gideon decision, this article guides the rhetorical study of the party briefs as a strategy for cultivating individual voice in legal writing. It is a rhetorical study of the party briefs filed in Gideon v. Wainwright, a 1963 U.S. Supreme Court decision establishing the constitutional right to counsel in state criminal proceedings and provides specific lessons to be used in the classroom setting to enhance students’ understanding of advanced persuasive techniques such as logos, ethos, pathos, and storytelling. Each lesson has been created through the lens of cognitive theory, in particular the concept of categories as organizers of perception. This article proposes that categories can either be reinforced or redefined to accomplish rhetorical purposes, and having a meta-cognitive understanding of that power is essential effective advocacy.
Kahan on Ideology, Motivated Reasoning, and Cognitive Reflection
Dan M. Kahan (Yale University - Law School) has posted Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study on SSRN. Here is the abstract:
Social psychologists have identified various plausible sources of ideological polarization over climate change, gun violence, national security, and like societal risks. This paper describes a study of three of them: the predominance of heuristic-driven information processing by members of the public; ideologically motivated cognition; and personality-trait correlates of political conservativism. The results of the study suggest reason to doubt two common surmises about how these dynamics interact. First, the study presents both observational and experimental data inconsistent with the hypothesis that political conservatism is distinctively associated with closed-mindedness: conservatives did no better or worse than liberals on an objective measure of cognitive reflection; and more importantly, both demonstrated the same unconscious tendency to fit assessments of empirical evidence to their ideological predispositions. Second, the study suggests that this form of bias is not a consequence of overreliance on heuristic or intuitive forms of reasoning; on the contrary, subjects who scored highest in cognitive reflection were the most likely to display ideologically motivated cognition. These findings corroborated the hypotheses of a third theory, which identifies motivated cognition as a form of information processing that rationally promotes individuals’ interests in forming and maintaining beliefs that signify their loyalty to important affinity groups. The paper discusses the normative significance of these findings, including the need to develop science communication strategies that shield policy-relevant facts from the influences that turn them into divisive symbols of identity.
Fan on Drug Offenders and Street Diversion
Mary Fan (University of Washington - School of Law) has posted Street Diversion and Decarceration (American Criminal Law Review, Vol. 50, 2012) on SSRN. Here is the abstract:
This article explores innovations in policing strategies that take a public health approach to drug offending. The article focuses on street diversion to treatment rather than criminal processing. States seeking cost-effective approaches to dealing with addiction beyond incarceration have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. The article analyzes the merits of giving police therapeutic discretion — the power to sort who gets treatment rather than enters the criminal justice system. The article draws insights from medicine and the experience of treatment courts about how to guide therapeutic discretion, mitigate the risk of racial disparities in selection of beneficiaries, and offer checks and balances on power.
December 10, 2012
Dimock on Intoxicated Offenders and the Tracing Principle
Susan Dimock (York University) has posted Please Drink Responsibly: Can the Responsibility of Intoxicated Offenders Be Justified by the Tracing Principle? (Chapter 6) (Library of Ethics and Applied Philosophy, Vol. 27, 2011, Moral Responsibility, Beyond Free Will and Determinism, Editors: Nicole A. Vincent, Ibo van de Poel, Jeroen van den Hoven) on SSRN. Here is the abstract:
Normally, reduced mental capacities are thought to reduce responsibility. This is how, for example, the criminal defences of insanity/mental defect and automatism work. Persons who lack the capacity, due to a disease of the mind, to understand the nature of their actions or that they are wrong, and persons who lack the capacity for voluntary control of their bodily movements, are thought to lack essential capacities for criminal responsibility. These criminal law practices exemplify the intuition that responsibility tracks capacity, a view sometimes called “capacitarianism”. An equally widely held view, however, operates to restrict the commitment to capacitarianism: the intuition that when a person is responsible for his own reduced mental capacities, the exculpatory value of those reduced capacities is discounted or even extinguished. The paradigmatic case of such reduced capacities involves persons who have reduced their capacities (of understanding, foresight, knowledge, advertence or self-control) through voluntary intoxication. This intuition is also reflected in the criminal law practices of most jurisdictions. Whether such practices can be justified is the topic of this paper. My conclusion will be that, even if we accept the capacitarian intuition and its limited application to those who are responsible for their own reduced capacities, the legal instantiation of them in criminal practice is unjustified. My argument is that our treatment of intoxicated offenders is not, in fact, supported by these commitments, contrary to what many theorists and jurists think.
Scheidegger on Race and the Death Penalty
Kent Scheidegger (Criminal Justice Legal Foundation) has posted Rebutting the Myths About Race and the Death Penalty (Ohio State Journal of Criminal Law, Vol. 10, No. 1, p. 147, 2012) on SSRN. Here is the abstract:
In 1984, a study on race and the death penalty went to trial in Georgia, with expert testimony on both sides. The federal district judge found that the study did not show what its principal author, David Baldus, claimed. To the extent it showed anything, it showed just the opposite, that neither race of the perpetrator nor race of the victim played a significant role in capital sentencing decisions. Yet the Baldus study is routinely cited as proof of what the author claimed rather than what the court found. The public perception of race and the death penalty has been severely distorted by misleading claims and faulty reporting. The body of evidence, when critically examined, shows that the reality of race and capital sentencing in the United States today is quite different from what is commonly believed.
Bucy on RICO Trends
Pamela H. Bucy (University of Alabama - School of Law) has posted RICO Trends: From Gangsters to Class Actions on SSRN. Here is the abstract:
This article addresses the question: why isn’t RICO used much? RICO, the Racketeer Influenced and Corrupt Organizations Act, both a crime and a civil cause of action, was passed in 1970 with much fanfare. The fanfare was deserved. RICO was an imaginative criminal justice initiative aimed at complex, systemic crime. RICO’s civil cause of action was viewed as a robust tool for plaintiffs and a vital supplement to strained law enforcement resources.
After conducting an in-depth analysis of RICO opinions, reported and unreported, rendered by the federal appellate courts during the seven year time period from 2005-2011, this article has an answer to the question. Criminal RICO’s time has come and gone, but civil RICO’s potential has not yet been realized. This article focuses on recent developments in case law that make civil RICO with regard to class actions, and in the pharmaceutical fraud area, newly viable.
The data analyzed in this article suggests that criminal RICO is anachronistic. Simpler, more streamlined statutes are now available to achieve, far more easily than RICO, the benefits RICO used to uniquely bestow: providing context for isolated acts, linking far-flung actors, penetrating organizations to reach key players, stiff sentences, obtaining forfeiture of property used to commit crime and reaped from crime. Civil RICO, on the other hand, is an untapped resource. Used properly, civil RICO is an optimal private attorney general tool and a boon for plaintiffs. This is true for two reasons. First, RICO mandates treble damages at a time when, because of court rulings and legislative actions, many plaintiffs are limited to little more than single damages. Second, in light of recent court rulings in RICO cases, RICO’s elements dovetail with class action requirements of commonality and predominance, making RICO class actions newly viable.
This article proceeds in eight parts. Part I provides an overview of the RICO statute. Part II explains the methodology used to gather the data in this study. Part III discusses quantitative measurements from the data including how many RICO cases are decided each year and where they are brought. Part IV describes the types of RICO cases brought under both criminal and civil RICO provisions. Part V examines the issues that have dominated RICO court decisions from 2005-2011. Part V discusses how recent court decisions on issues of “enterprise,” proximate causation and “pattern” make civil RICO cases easier than ever to plead and prove. Part VI analyzes the outcome in RICO cases including who wins, who loses, and which circuits favor which side. Part VII focuses on RICO class actions discussing past and future trends, successes, and failures. Part VIII focuses on pharmaceutical fraud cases, noting why they are especially ripe for use of civil RICO.
December 9, 2012
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