Thursday, April 25, 2013
Wednesday, April 24, 2013
Zachary D. Clopton (United States Attorney's Office – Northern District of Illinois) has posted Replacing the Presumption Against Extraterritoriality (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank. Yet the presumption’s continual invocation belies a deeper reality — none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest that the presumption avoids conflicts with foreign states and approximates legislative attention, yet these same decisions show the presumption is poorly attuned to either of these laudable goals. And while separation of powers, due process, and predictability are superficially served by this rule, they too crumble in the face of serious scrutiny.
Aurelie Ouss and Alexander Peysakhovich (Harvard University and Harvard University - Program for Evolutionary Dynamics) have posted When Punishment Doesn't Pay: 'Cold Glow' and Decisions to Punish on SSRN. Here is the abstract:
Economic theories of punishment focus on determining the levels of punishment that will provide maximal social material payoffs. In calculating these levels, several parameters are important: total social costs, total social benefits and the probability that defectors are apprehended. However, often times social levels of punishment are determined by aggregates of individual decisions. Research in behavioral economics, psychology and neuroscience shows that individuals appear to treat punishment as a private good ("cold glow") and so individual decisions may be inappropriately responsive to the above parameters. This means that, depending on environment, aggregate punishment levels can be predictably above or below optimally deterring benchmarks and final social outcomes (e.g.. levels of cooperation and total social costs incurred) can be highly inefficient. We confirm these predictions in a series of experiments. Our research highlights the importance of understanding the psychology of punishment for understanding economically important outcomes and for designing social mechanisms.
Justin F. Marceau (University of Denver Sturm College of Law) has posted Gideon's Shadow (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right – that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights – this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.
Tuesday, April 23, 2013
Ingrid V. Eagly (University of California, Los Angeles (UCLA) - School of Law) has posted Gideon's Migration (122 Yale Law Journal 101 (2013)) on SSRN. Here is the abstract:
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.
Jessica L. West (Vermont Law School) has posted Is Injustice Relevant? Narrative and Blameworthiness in Protester Trials (Temple Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article examines application of the doctrine of relevance to exclude evidence of the motivations underlying the actions of civilly disobedient criminal defendants. While not constitutionally protected, civil disobedience plays an important role in the political, social and legal history of the United States. Though acts of civil disobedience involve violations of law, actions of protest differ from actions of non-protest crime in a number of important respects. Civilly disobedient protesters undertake their action openly, motivated by the desire to call public attention to an injustice. Their motivation is distinct from that of non-protester criminal defendants who seek to promote individual goals. Despite the importance of protester motivation in distinguishing the civilly disobedient defendant, courts routinely exclude evidence of protester motivations as not relevant in criminal proceedings. Applied broadly in many contexts, the doctrine of relevance is applied narrowly in the context of motivations of protesters. The constrained application utilized in protester trials overlooks evolving understandings of evidentiary relevance. The most important of these evolving concepts are narrative relevance and blameworthiness. Evidence of underlying motivation provides an essential piece of a cohesive narrative explaining a protester’s actions and intentions. The evidence also permits a fact finder to conduct the evaluation of blameworthiness required for a determination of criminal culpability. Ultimately, the article concludes that courts should recognize the admissibility of protester motivation within criminal trials of civilly disobedient protesters.
Monday, April 22, 2013
From the New York Times:
BOSTON — The surviving suspect in the Boston Marathon bombings was charged on Monday with using a “weapon of mass destruction” that resulted in three deaths and more than 200 injuries, as law enforcement officials provided the most detailed account of the bombing to date.
. . .
The White House said earlier Monday that Dzhokhar Tsarnaev would not be tried as an enemy combatant. “We will prosecute this terrorist through our civilian system of justice,” said Jay Carney, the White House press secretary.
Mr. Carney noted that it was illegal to try an American citizen in a military commission, and that a number of high-profile terrorism cases were handled in the civilian court system, including that of the would-be bomber who tried to bring down a passenger jet around Christmas 2009 with explosives in his underwear.
Jacqueline Hodgson (University of Warwick - School of Law) has posted The Impact of Salduz in France: Making Custodial Legal Advice More Effective (92 Criminal Justice Matters 14-15 (Forthcoming)) on SSRN. Here is the abstract:
Like many other jurisdictions, France was reluctant to consider the ruling in Salduz v Turkey (2008) as applicable to its own criminal procedure, given the regime of safeguards in place, most notably judicial supervision. However, after defence lawyers litigated successfully in the criminal and appeal courts, as well as the constitutional council (Conseil constitutionnel), in 2011 France was finally obliged to make provision, for the first time, for lawyers to be present during the police interrogation of suspects. This is a significant change in the pre-trial investigation regime. The public prosecutor’s responsibility to oversee the police detention and interrogation of suspects is no longer regarded as justification for the exclusion of defence lawyers from this phase of the investigation. However, although the presence of the lawyer during the garde à vue is a significant improvement to defence rights, there are still concerns that the right can be delayed and that the lawyer's role is constrained to that of passive observer.
Hannah Brenner (Michigan State University - College of Law) has posted Transcending the Criminal Law's 'One Size Fits All' Response to Domestic Violence (William & Mary Journal of Women and the Law, Vol. 19, 2013) on SSRN. Here is the abstract:
Domestic violence is no longer a private matter confined within the four walls of the home. The shift from private to public is connected with marked progress within the legal system, which strives to protect victims and hold batterers accountable through a myriad of specific responses that have ranged from attitudinal and logistical shifts from law enforcement to increased attention within legal education to a general acknowledgment of the impact of domestic violence on individual victims, children, families, and the broader community to the passage of federal and state legislation.
Sunday, April 21, 2013
Orin Kerr has this helpful and timely post at The Volokh Conspiracy. In addition to the roadblock cases he discusses, one might also consider the relevance of the Supreme Court's decision in Brigham City v. Stuart for the proposition that even a home entry might be permitted on less than probable cause in an appropriate emergency. That case involved entry where there were reasonable grounds, apparently short of probable cause, to believe that an occupant was in need of assistance. Given the possibility that a fugitive would take a hostage, police could not rely on a resident's assurance that no one in the home was in peril. Moreover, if the fugitive was reasonably believe to pose a substantial danger to many people, the Court might well not cabin Stuart to danger to those inside the residence entered.
Saturday, April 20, 2013
Issue summaries are from ScotusBlog, which also links to papers:
- Sekhar v. U.S.: Whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951 (a)(the Hobbs Act) and 18 U.S.C. § 875(d).
- Metrish v. Lancaster: (1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, seeRogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.
From the New York Times:
The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of Sept. 11, including whether he should be read a Miranda warning, how he should be charged, where he might be tried and whether the bombings on Boylston Street last Monday were a crime or an act of war.
. . .
Civil libertarians have objected to the more aggressive interpretation of the exception to the Miranda rule, which protects the Constitutional right against involuntary self-incrimination. Anthony D. Romero, the executive director of the American Civil Liberties Union, said that it would be acceptable to withhold Miranda before asking whether there were any more bombs hidden in Boston, but that once the F.B.I. went into broader questioning, it must not “cut corners.”
But some prosecutors suggested that if any confession was unnecessary to convict him, then the F.B.I. might keep him talking without a warning without ultimately invoking the more disputed version of the public-safety exception to introduce it in court.
“I see a fairly strong case against this young man based on a great deal of evidence so, as a prosecutor, the top of my list would not be necessarily to Mirandize him and get a usable confession,” said David Raskin, a former federal prosecutor in terrorism cases in New York.
Friday, April 19, 2013
George D. Brown (Boston College Law School) has posted Notes on a Terrorism Trial – Preventive Prosecution, 'Material Support' and the Role of the Judge after United States v. Mehanna (Harvard National Security Journal, Vol. 4 No. 1, pp. 1-57) on SSRN. Here is the abstract:
The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applyingHolder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence — which may show just how much of a “terrorist” the defendant is — are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.”
Myles Frederick McLellan (University of Ottawa - Department of Criminology) has posted Innocence Compensation: A Comparative Look at the American and Canadian Approaches (Criminal Law Bulletin, Vol. 49, No. 2, p. 218, 2013) on SSRN. Here is the abstract:
The plight of the wrongfully convicted is gaining prominence with the growing awareness of the prodigious harms to innocent persons at the hands of the criminal justice system. Most of the attention, both scholarly and legislatively, has been focused on the causes of miscarriages of justice. What needs to now be addressed more comprehensively is the issue of how to provide redress to those persons whose lives have been inexorably damaged; and how to best compensate them in their efforts to rebuild a life. Virtually all western democracies have turned their attention to this issue, some more effectively than others. This paper looks at the similarities and the differences in the approaches between the United States and Canada in this regard. Lessons can be learned from both.
Wes R. Porter (Golden Gate University School of Law) has posted Viewpoint: Sentencing Guidelines Needn't Be Scrapped (The Recorder, March 2013) on SSRN. Here is the abstract:
U.S. District Judge Jed Rakoff of the Southern District of New York has offered an important voice on a wide range of issues in federal practice, typically from the bench. In 2011, for example, he refused to rubber-stamp a $285 million proposed civil settlement between the Securities and Exchange Commission and banking giant Citigroup. Rakoff recently sounded off from the podium on the current state of federal sentencing. On March 7, as the keynote speaker at the 27th Annual National Institute on White Collar Crime in Las Vegas, Rakoff railed against the numerical calculations and formulaic approach that still drives criminal sentencing in federal court: the U.S. Sentencing Guidelines.
Thursday, April 18, 2013
JoAnne Sweeny (University of Louisville Louis D. Brandeis School of Law) has posted History of Adultery and Fornication Criminal Laws on SSRN. Here is the abstract:
This is a portion of a paper I am working on about the history of fornication and adultery criminal laws. This portion of the paper examines evidentiary issues in fornication and adultery prosecutions, how those issues were overcome by the courts, and the historical rationales for criminalizing adultery and fornication.
Rebecca Roiphe (New York Law School) has posted The Serpent Beguiled Me: A History of the Entrapment Defense on SSRN. Here is the abstract:
This article argues that the entrapment defense grew as a response to the increasingly pervasive and invasive forms of law enforcement, but it was not an inevitable reaction to the sudden expansion in the nature and scope of state and federal police power. Entrapment emerged as a piece of a puzzle: an innovative way to police the boundaries between government and the individual in the newly drawn precincts of the modern state.