Tuesday, August 27, 2013
Catherine Martin Christopher (Texas Tech University School of Law) has posted Whack-a-Mole: Why Prosecuting Digital Currency Exchanges Won't Stop Online Laundering (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract:
Law enforcement efforts to combat money laundering are increasingly misplaced. As money laundering and other underlying crimes shift into cyberspace, U.S. law enforcement focuses on prosecuting financial institutions’ regulatory violations to prevent crime, rather than going after criminals themselves. This article will describe current U.S. anti-money laundering laws, with particular criticism of how attenuated prosecution has become from crime. The article will then describe the use of Bitcoin as a money-laundering vehicle, and analyze the difficulties for law enforcement officials who attempt to choke off Bitcoin transactions in lieu of prosecuting underlying criminal activity. The article concludes with recommendations that law enforcement should look to digital currency exchangers not as criminals, but instead as partners in the effort to eradicate money laundering and — more importantly — the crimes underlying the laundering.
Monday, August 26, 2013
From The New York Times:
WASHINGTON — A 23-year-old bank robber named Shon R. Hopwood stood before a federal judge in Lincoln, Neb. He asked for leniency, vowing to change.
Judge Richard G. Kopf had no patience for promises. “We’ll know in about 13 years if you mean what you say,” he said. It was 1999.
“My viscera was wrong,” Judge Kopf went on. “Hopwood proves that my sentencing instincts suck.”
Judge Kopf had just heard the news that Mr. Hopwood, now a law student, had won a glittering distinction: a clerkship for a judge on the United States Court of Appeals for the District of Columbia Circuit, which is generally considered the second most important court in the nation, after the Supreme Court.
This editorial is from the L.A. Times:
It has been five years since a commission made up of prosecutors, defense lawyers, judges and others presented its startling report detailing holes in California's criminal justice system and making recommendations on how to mend them. One of the biggest problems the experts found was dozens of false confessions — assertions by people under interrogation that they had committed crimes when in fact they had not.
. . .
Lawmakers this year considered SB 569, a narrowly tailored bill that would require video recording of custodial interviews with minors, whose rate of false confessions is higher than that of adult suspects. The bill was sent to the Assembly's suspense file, and it has just a week before it can be revived or else join the slew of bills that have been voted down or vetoed.
This is not the only bill stuck in suspense, and lawmakers will have to judge carefully what to do with all of them in the coming week. This one deserves passage. It's a modest step with costs that are also modest, when compared with the unacceptable damage to a justice system that doesn't know or care whether it has the right defendant on trial.
Irina D. Manta (Hofstra University - Maurice A. Deane School of Law) has posted Book Review: 13 Ways to Steal a Bicycle: Theft Law in the Information Age (The IP Law Book Review, Vol. 4, No. 1, September 2013) on SSRN. Here is the abstract:
Stuart Green's 13 Ways to Steal a Bicycle: Theft Law in the Information Age provides an extensive overview of the foundations, logic, and tensions of theft law. In this solicited book review, I present the content of his important work and critique some of its conclusions about the taking of intangible property such as various forms of IP.
Suzanne Bouclin (University of Ottawa - Common Law Section) has posted Film, Punishment In (W. Miller and J.G. Golson, eds., The Social History of Crime and Punishment in America: An Encyclopedia, Sage, 2012) on SSRN. Here is the abstract:
Cinematic images of the formal criminal law and punishment for its transgression provide insight into the web of cultural and social practices that shape and maintain boundaries between ‘criminals’ and the rest of society. The prison movie is arguably, the quintessential, but is certainly one of the most accessible modes through which we imagine, understand and construct myths about the nature of discipline in contemporary society. Consequently, this note will focus on the canonical cinematic representation of discipline: American prison movies from the early twentieth century to the mid 1950s when cinema began to be displaced by television (which took over, until fairly recently, as the dominant form through which myths and assumptions about discipline have been circulated).
Sunday, August 25, 2013
From Orin Kerr at the Volokh Conspiracy:
The group might be effective in the end, as they each bring a different skill set and perspective to the problem. I imagine that Swire will be the civil libertarian, Sunstein the pragmatist interested in the facts, and Clarke the government’s guy. (I don’t know anything about Morrell beyond his resume, so I wouldn’t want to speculate how he will fit in.) We’ll have to wait and see what they produce. But I was hoping to see a larger and more diverse group, and one with some technologists who would be able to really master the technical issues. This is a smaller and less diverse group, and one with stronger ties to the Obama Administration than is helpful. Perhaps that was necessary because everyone needed to have a security clearance, which presumably they all have or recently had. But it’s not as large or diverse a group as I would like to see.
|1||881||Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion
Elizabeth E. Joh,
U.C. Davis School of Law,
Date posted to database: June 26, 2013
|2||340||Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies
Judith Resnik, Jamelia Morgan, Alyssa Roxanne Work, Julia Spiegel, Hope Metcalf, Haran Tae, Samuel Oliker-Friedland, Brian Holbrook,
Yale Law School, Independent, Independent, Yale University - Law School, Independent, Yale Law School, Independent, Independent,
Date posted to database: July 1, 2013 [3rd last week]
|3||288||Should Law Improve Morality?
University of Oxford - Faculty of Law,
Date posted to database: July 18, 2013 [4th last week]
|4||253||A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis
Sandeep K. Narang, John David Melville, Christopher S. Greeley,Shannon L. Carpenter, Betty Spivack,James D. Anderst,
University of Texas at San Antonio - Health Science Center, UTHSCSA, UTHSC-Houston, Children's Mercy Hospital, Children's Mercy Hospital, Unaffiliated Authors - Independent,
Date posted to database: July 4, 2013 [5th last week]
|5||216||Seven Ways Neuroscience Aids Law
Owen D. Jones,
Vanderbilt University - Law School & Dept. of Biological Sciences,
Date posted to database: June 19, 2013 [6th last week]
|6||163||Libertarian Paternalism, Path Dependence, and Temporary Law
Richard H. McAdams, Tom Ginsburg,Jonathan S. Masur,
University of Chicago Law School, University of Chicago - Law School, University of Chicago Law School,
Date posted to database: June 19, 2013 [8th last week]
|7||162||The Implications of Excluding State Crimes from 47 U.S.C. §230’s Immunity
Santa Clara University - School of Law,
Date posted to database: July 1, 2013
|8||138||Disputed Interrogation Techniques in America: True and False Confessions and the Estimation and Valuation of Type I and II Errors
Deborah Davis, Richard A. Leo,Michael J Williams,
University of Nevada, Reno, University of San Francisco - School of Law, University of Nevada, Reno,
Date posted to database: July 2, 2013 [9th last week]
|9||131||The Next Generation Communications Privacy Act
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: July 30, 2013 [new to top ten]
|10||128||The Nat Turner Trials
Alfred L. Brophy,
University of North Carolina (UNC) at Chapel Hill - School of Law,
Date posted to database: July 20, 2013 [new to top ten]
Saturday, August 24, 2013
Laurent Sacharoff (University of Arkansas - School of Law) has posted Constitutional Trespass on SSRN. Here is the abstract:
The Supreme Court has recently created a trespass test for Fourth Amendment searches without explaining what type of trespass it envisions — one based on the common law of 1791, on the trespass law of the state where the search occurred, or on more general trespass principles. Indeed its most recent case raises the question whether the Court has created a trespass test at all, a turnabout that largely recapitulates the Court’s 125-year history of confusion in which it has embraced, rejected, or simply ignored trespass as a test from era to era or even year to year.
This article proposes a trespass test, as a supplement to a privacy test, that will settle this recent and historical uncertainty.
Friday, August 23, 2013
From the Blog of Legal Times:
A Pennsylvania federal judge has vacated the murder conviction of a man who’s spent more than 20 years on death row, saying the government built the case around “shaky” eyewitness identification and withheld evidence.
. . .
"The Commonwealth of Pennsylvania has committed a grave miscarriage of justice in convicting Dennis and sentencing him to die for this crime," Judge Anita Brody of U.S. District Court for the Eastern District of Pennsylvania wrote in her August 21 ruling.
From the New York Times editorial board:
As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse. Clemency given to powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, has only increased cynicism about the process.
Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation. No one seems to know why some requests are granted and others denied. To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win.
Bernard E. Harcourt (University of Chicago - Department of Political Science) has posted The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court's Opinion in United States v. Windsor, John Stuart Mill's Essay on Liberty (1859), and H. L. A. Hart's Modern Harm Principle on SSRN. Here is the abstract:
In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central point. The argument in The Collapse of the Harm Principle can be slightly restated and, I believe, continues to shed light on contemporary debates over the legal regulation of morality: Today, the hegemony of the modern harm principle, developed by liberal legal thinkers at mid-twentieth century, continues to generate a proliferation of harm arguments, and the competing claims of non-trivial harms have effectively neutralized the limiting function of the harm principle. I then demonstrate the continued vitality of the argument by exploring the recent Supreme Court decision on same-sex marriage, United States v. Windsor, which, I argue, reflects perfectly the collapse of the harm principle.
Karena Rahall (Seattle University School of Law) has posted The Siren Is Calling: Economic and Ideological Trends Toward Privatizing Public Police Forces on SSRN. Here is the abstract:
The landmark Supreme Court ruling in Citizens United has opened the floodgates to allow unlimited corporate campaign donations, and Supreme Court doctrine is shifting back to a Lochner era economic rights focus. At the same time, there are efforts underway across the United States to privatize public services in order to alleviate what proponents claim is a shortfall in revenue due to the recession. Within those privatization efforts, public policing has become a new front, with outsourcing and wholesale privatization of the police underway. This article adds to the existing scholarship a political analysis of privatization efforts, including how lobbying and campaign financing is making wholesale privatization in the area of policing a very real possibility.
Thursday, August 22, 2013
From the New York Times:
Rialto has become the poster city for this high-tech measure intended to police the police since a federal judge last week applauded its officer camera program in theruling that declared New York’s stop-and-frisk program unconstitutional. Rialto is one of the few places where theimpact of the cameras has been studied systematically.
In the first year after the cameras were introduced here in February 2012, the number of complaints filed against officers fell by 88 percent compared with the previous 12 months. Use of force by officers fell by almost 60 percent over the same period.
. . .
William A. Farrar, the Rialto police chief, believes the cameras may offer more benefits than merely reduced complaints against his force: the department is now trying to determine whether having video evidence in court has also led to more convictions.
. . .
“When you put a camera on a police officer, they tend to behave a little better, follow the rules a little better,” Chief Farrar said. “And if a citizen knows the officer is wearing a camera, chances are the citizen will behave a little better.”
From the release:
On Oct. 31-Nov. 1,
2013, the ABA criminal justice section will host
its annual conference, this year at the Omni Shoreham in Washington,
D.C. The first event of the conference, on the afternoon of Thursday,
Oct. 31, is a workshop for scholarly papers relating to criminal
justice. The workshop will run from 1-4 p.m.
All papers on criminal law, criminal procedure, or criminal justice
topics are welcome. Participants will present their work in a
roundtable format, and abstracts or drafts will be shared among
presenters and discussants in advance of the workshop. Workshop
presenters must also attend the criminal justice panels on Friday,
Nov. 1. There will be three academic panels scheduled on Friday, one
prior to lunch and two in the afternoon.
Josh Bowers (University of Virginia School of Law) has posted Probable Cause, Constitutional Reasonableness & the Unrecognized Point of a 'Pointless Indignity' on SSRN. Here is the abstract:
A police officer needs probable cause to make an arrest. But, almost always, he needs no more. In this way, an arrest may be constitutionally reasonable, even if it is entirely unreasonable by any plausible moral or instrumental measure. Indeed, the Court has upheld even an arrest that it termed a “gratuitous humiliation” and a “pointless indignity.” In this article, I examine what accounts for the Court’s prevailing methodological approach to Fourth Amendment reasonableness, and I evaluate whether the Court’s reasoning withstands scrutiny. Specifically, I trace the Court’s methodology back to a particular conception of the legality principle, whereby formalistic measures are crafted around suspicion of guilt and are treated as exclusive. I offer contrary reasons, however, to conclude that the legality principle’s chief purpose (as a safeguard against the arbitrary exercise of executive discretion) is better served by a two-ply constitutional test that would demand both probable cause and general reasonableness. That is, I submit that probable cause might work best as a special supplement to otherwise relevant qualitative considerations (and not as a special substitute). To support this claim, I focus narrowly on one particular qualitative consideration that probable cause has almost completely cannibalized. That consideration is dignity. It is not my purpose, however, to see the Fourth Amendment reoriented around dignity. Dignity matters, but neither it nor probable cause (nor anything else) is all that matters. I rely upon dignity as a placeholder for any of the many qualitative considerations that a quantitative proxy for constitutional reasonableness has unjustifiably ignored.
From the New York Times:
WASHINGTON — The federal government is making progress on developing a surveillance system that would pair computers with video cameras to scan crowds and automatically identify people by their faces, according to newly disclosed documents and interviews with researchers working on the project.
The Department of Homeland Security tested a crowd-scanning project called the Biometric Optical Surveillance System — or BOSS — last fall after two years of government-financed development. Although the system is not ready for use, researchers say they are making significant advances. That alarms privacy advocates, who say that now is the time for the government to establish oversight rules and limits on how it will someday be used.
Jan L. Jacobowitz and Danielle Singer (University of Miami - School of Law and University of Miami - School of Law) have posted The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
Attorney Mark O’Mara’s use of social media as part of the defense strategy in the representation of George Zimmerman, who was prosecuted for the death of Trayvon Martin, highlighted the use of social media in the practice of law, and because of the tremendous media coverage of the trial, facilitated a robust conversation on whether the legal profession’s use of social media is the “new normal.” In fact, lawyers’ increasing use of social media is evidenced by a growing body of case law, ethics opinions, and journal articles discussing the propriety of using social media in areas such as investigation, discovery, and jury selection. Nonetheless, social media is often discussed as a slippery slope where only the adventurous among the legal profession are traveling. However, technology and social media are evolving so quickly that lawyers who elect not to participate in social media may be in for a rude awakening. An awakening that makes clear that the requisite level of competence and expertise required to effectively represent clients and avoid disciplinary and malpractice exposure requires an understanding and use of social media and technology in the practice of law. This article will explore the legal profession’s historical relationship with communication technology, relevant legal ethics rules and opinions, court decisions and malpractice concerns, which all support the contention that the use of social media and technology in the practice of law not only has become a required component of effective lawyering, but also that the failure to employ social media may result in the ineffective representation of clients, disciplinary complaints, and/or malpractice claims.
Wednesday, August 21, 2013
Tracy Hresko Pearl (Florida International University (FIU) - College of Law) has posted Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process (Criminal Law Bulletin, Vol. 50, No. 4, 2014, Forthcoming) on SSRN. Here is the abstract:
Courts currently permit victims to offer victim impact statement in criminal proceedings in all 50 states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States. In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.
From the New York Times:
In some Texas counties, it takes six months or longer to get DNA test results from the Department of Public Safety, says William Lee Hon, the Polk County criminal district attorney.
Now, Mr. Hon and other prosecutors fear that come Sept. 1, when a new law takes effect requiring DNA analysis of all biological evidence in death penalty cases, the wait could grow longer. “We’re not sure that D.P.S. has the resources currently to adequately comply with that legislation,” he said.
Brandon L. Garrett (University of Virginia School of Law) has posted Accuracy in Sentencing (Southern California Law Review, Vol. 86, 2014, Forthcoming) on SSRN. Here is the abstract:
A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice” — that is, a type of claim of innocence. The Supreme Court’s “miscarriage of justice” standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post- conviction statute for federal prisoners, and the “Savings Clause” that permits resort to habeas corpus rather than § 2255. That standard requires a judge to ask whether a reasonable decisionmaker would more likely than not reach the same result. However, the use of the miscarriage of justice standard with respect to claims of sentencing error remains quite unsettled. In this essay, I provide a taxonomy of types of innocence of sentence claims, and describe how each has developed, focusing on federal courts. I question whether finality should play the same role regarding correction of errors in sentences, and I propose that a single miscarriage of justice standard apply to all types of sentencing error claims, when not considering on appeal under reasonableness review. Finally, I briefly describe how changes to the sentencing process or sentencing guidelines could also reflect certain concerns with accuracy.