Saturday, March 9, 2013
Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Rapid Rise of 'Sneak and Peak' Searches, and the Fourth Amendment 'Rule Requiring Notice' on SSRN. Here is the abstract:
This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment’s “rule requiring notice.”
Congress authorized these “sneak and peek” warrants in the USA Patriot Act, in 2001, purporting to merely codify existing practice. A quiet revolution in covert searching has ensued. This article presents the first empirical account of the rapid rise in covert searching: from around 25 delayed notice warrants nationwide in 2002, to over 3,700 in 2011, an increase of over fourteen thousand percent. This increase has not been driven by terrorism cases — the data show 75 percent of delayed notice warrants are used in drug cases, and less than one percent in terrorism cases.
Friday, March 8, 2013
"En Banc Ninth Circuit Holds That Computer Forensic Searches Are Like “Virtual Strip Searches” And Require Reasonable Suspicion At the Border"
Kyle Graham (Santa Clara University School of Law) has posted Overcharging (Ohio State Journal of Criminal Law, Vol. 12, No. 1, 2014) on SSRN. Here is the abstract:
The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.
Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are. This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.
Martin Petrin (University of Leicester - School of Law) has posted Reconceptualizing the Theory of the Firm – From Nature to Function on SSRN. Here is the abstract:
What is the “firm”? This Article revisits and explores the theory of the firm and corporate personhood and shows how the century old discourse in this area still firmly shapes how scholars, judges, and legislatures treat legal entities in corporate law, constitutional law, tort law, and criminal law, causing unnecessary complications and flawed outcomes.
Traditionally, the firm is characterized as either a real entity, a fiction, or an aggregate. Conversely, the Article proposes a novel answer to the perennial question as to how to conceptualize the firm. The new approach refocuses the debate away from the nature of the firm and contends that explanations of the firm should focus on its economic and social function, purpose, and effects. It also argues that compared to current approaches, a purely functional approach, as developed in more detail in the Article, provides a more useful analytical framework to ascertain what rights and duties corporations and other legal entities should have.
Thursday, March 7, 2013
From The New York Times:
WASHINGTON — The Senate Judiciary Committee on Thursday approved a measure that would make the practice of illegally buying a gun for someone else a felony, and increase penalties for the crime.
. . .
Most gun safety experts say they believe that straw-purchasing and background check measures work in tandem. A failure by Congress to pass more than a modified straw-purchasing bill would be a victory for the National Rifle Association, which opposes each measure.
David Thaw (University of Connecticut School of Law) has posted Criminalizing Hacking, Not Dating: Reconstructing the CFAA Intent Requirement (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
This article addresses a growing problem with existing United States Federal law addressing cybercrime. The Computer Fraud and Abuse Act of 1986 (CFAA), which in part revised earlier (limited) legislation on the subject, is the primary Federal "anti-hacking" statute providing both criminal penalties and (limited) rights of private action for certain unauthorized activities using computers and similar information systems. Congress originally intended to address only a narrow range of crimes, but as others have observed the statute's scope expanded dramatically over the past two decades.
The result of this expansion threatens to criminalize wide varieties of activities, common to the ordinary computer and Internet user, that are apparently innocuous in the context of "hacking" but technically constitute unauthorized activities or activities exceeding a users authorized access as a result of terms of service agreements defining access boundaries in lengthy and often legally or technically complex language.
Erin Murphy (New York University School of Law) has posted Back to the Future: The Curious Case of United States v. Jones (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:
Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?
Wednesday, March 6, 2013
Samuel R. Gross (University of Michigan Law School) has posted How Many False Convictions are There? How Many Exonerations are There? (Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems, C. R. Huff & M. Killias eds., Routledge, March 2013) on SSRN. Here is the abstract:
The most common question about false convictions is also the simplest: How many are there? The answer, unfortunately, is almost always the same and always disappointing: We don’t know. Recently, however, we have learned enough to be able to qualify our ignorance in two important respects. We can put a lower bound on the frequency of false convictions among death sentences in the United States since 1973, and we have some early indications of the rate of false convictions for rape in Virginia in the 1970s and early 1980s. These new sources of information suggest – tentatively – that the rate of false convictions for serious violent felonies in the United States may be somewhere in the range from 1% to 5%. Beyond that – for less serious crimes and for other countries – our ignorance is untouched.
Peter A. Joy (Washington University in Saint Louis - School of Law) has posted The Criminal Discovery Problem: Is Legislation a Solution? on SSRN. Here is the abstract:
In theory, legislation to enforce a prosecutor’s obligation to disclose exculpatory material to the accused should not be necessary. Although a series of U.S. Supreme Court cases have outlined a prosecutor’s legal obligation to disclose evidence favorable to the accused where the evidence is material either to guilt or punishment, in practice some prosecutors continue to violate the due process rights of defendants by failing to adhere to both their legal and ethical disclosure duties. In recent years, the prosecution, conviction, and ultimate exoneration of U.S. Ted Stevens case is the most publicized example of a federal prosecution marred by violations of prosecutorial discovery obligations. Subsequent to his conviction, an investigation revealed that some prosecutors engaged in systematic concealment of significant exculpatory evidence.
Tuesday, March 5, 2013
Some thought it would never happen. Others thought it was inevitable. Regardless, the time is upon us. Federal judges are turning to drug courts and even deferred prosecutions in drug cases, a policy that has met with good success rates in state court, with the agreement of DOJ.
Caren Myers Morrison (Georgia State University - College of Law) has posted Beyond 'Perfection': Can the Insights of Perfecting Criminal Markets Be Put to Practical Use? (Columbia Law Review Sidebar, 2013) on SSRN. Here is the abstract:
David Jaros’s thought-provoking new Article, Perfecting Criminal Markets, sheds light on a heretofore unappreciated effect of our obsession with criminalization: that merely by creating new crimes, lawmakers may inadvertently strengthen existing criminal markets. To support his argument, Jaros adopts the tenets of neoclassical deterrence theory, which assume that criminalizing an activity will deter its occurrence. But the model Jaros employs has its limits. The weakness of a rational choice account of criminal markets is that it relies so heavily on the assumption that prospective criminals will be aware of, and swayed by, criminal laws that might in fact be quite obscure.
The story is at Jurist:
The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Ben Emmerson [official profile] called Monday on the US government to publish the Senate Select Committee on Intelligence[official website] report detailing investigations into the Central Intelligence Agency (CIA) [official website] secret detention and interrogation program during the Bush presidency. According to the report [text, PDF] submitted to the UN Human Rights Council, there is evidence of the CIA operating clandestine detention facilities known as "black sites," in a number of countries including Lithuania, Morocco, Poland, Romania and Thailand. In addition, the report claims that the officials of at least 49 other nations allowed their airspace or airports to be used for extraordinary renditions [JURIST news archive] carried out by the CIA.The Special Rapporteur urged those countries accused of allowing CIA "black sites" "to establish (or where applicable, to re-open) effective independent judicial or quasi-judicial inquiries into credible allegations that secret CIA "black sites" were established on their territories." In January 2009 the Obama administration passed an executive order prohibiting the use of secret detention, torture and other forms of prisoner abuse.
William W. Berry III (University of Mississippi School of Law) has posted Criminal Constitutional Avoidance on SSRN. Here is the abstract:
Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.
This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have a constitutionally clear meaning (and are not void-for-vagueness) or do not have a constitutionally clear meaning (and are void for vagueness). In other words, this article claims that the absence of statutory ambiguity — one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities — in void-for-vagueness cases makes the use of the avoidance canon improper in such cases.
Monday, March 4, 2013
"Raw Story: Congressional bill requires welfare recipients to sign waiver of their Fourth Amendment rights"
The article is summarized at FourthAmendment.com. In part:
Low-income parents seeking federal assistance would be forced to sign away their Fourth Amendment rights under a bill proposed last week by Republican Rep. Stephen Fincher of Tennessee.
The Welfare Integrity Act of 2013 would require applicants for and recipients of assistance under the Temporary Assistance for Needy Families (TANF) program to sign a waiver of their constitutional rights and submit to random drug tests. The program helps poor families with children pay for living expenses such as rent, heat, utilities and personal care items.
From the New York Times:
ORLANDO, Fla. (AP) — Twelve former Florida A&M University band members were charged Monday with manslaughter in the 2011 hazing death of a drum major.
. . .
Prosecutors had originally filed felony hazing charges that only required that they prove the defendants took part in a hazing that resulted in death. It didn't require them to prove who struck the fatal blows.
I. Glenn Cohen (Harvard Law School) has posted Chapter 10: Medical Outlaws or Medical Refugees? An Examination of Circumvention Tourism (Risks and Challenges in Medical Tourism: Understanding the Global Market for Health Services Controversies in the Exploding Industry of Global Medicine, Chapter 10, Jill Hodges, ed., Praeger, 2012) on SSRN. Here is the abstract:
While many medical tourists are motivated to travel by the price of service, the ability to jump queues, or greater expertise of a foreign provider, there is also a very different kind of medical tourism afoot in the world today that I call “circumvention tourism” — travel to access services that are legal in the patient's destination country but illegal in the patient’s home country, thereby circumventing a domestic prohibition on the service. Examples include travel to obtain abortion, assisted suicide, reproductive technologies, and female genital cutting. This chapter in a book on medical tourism examines legal and ethical issues relating to "circumvention tourism," especially the issue of whether a patient's home country can and should apply its existing domestic prohibition extraterritorially.
David Pozen (Columbia Law School) has posted The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.
Ray McKoski has posted Prospective Perjury by a Criminal Defendant: It's All about the Lawyer (Arizona State Law Journal, Vol. 44, 2012) on SSRN. Here is the abstract:
This article offers a new approach to the ethical dilemma facing an attorney representing a criminal defendant who insists on testifying falsely. The article begins by reviewing the development of the professional obligations of candor to the court and loyalty to the client from the first English statute regulating lawyers to the current ABA Model Rules of Professional Conduct. This review demonstrates that for 700 years the duty of candor has trumped the duty of loyalty in cases of prospective client perjury. Second, the article debunks the myth that a rule defining counsel’s response to a client’s planned perjury is necessary to prevent false evidence from infecting the trial. Instead, it is demonstrated that the true purpose of a rule requiring remedial measures by an attorney facing client perjury is to protect the lawyer, not the legal system. Third, the flawed traditional approaches to the perjury dilemma are examined. Lastly, a new proposed “supplemental counsel” approach to the prospective perjury problem is shown to accommodate the interests of the legal system, the legal profession, and the criminal defendant far better than any current approach.