Tuesday, April 30, 2013
Aimee Elizabeth Kaloyares has posted Annie Get Your Gun? An Analysis of Reactionary Gun Control Law and Their Utter Failure to Protect Americans from Violent Gun Crimes (Southern University Law Review, Vol. 40.2, 2013) on SSRN. Here is the abstract:
Reactionary gun control legislation fails to halt gun crime because it consistently fails to address the underlying causes of gun crime; which current laws, if enforced, would prevent. Moreover, the guarantees of the Second Amendment to “bear arms” are in constant conflict with reactionary legislative proposals, resulting in the attempt to lessen the protections of the United States Constitution. A retrospective analysis of violent gun crimes in the United States such as the Columbine shootings, the Virginia Tech shootings, the Tucson Arizona shootings and the Aurora Colorado shootings will show that each reactionary law proposed failed strict scrutiny and offered no more protection than the existing laws. Further, a brief analysis of the positions groups or agencies like the National Rifle Association (NRA), the Brady Campaign to End Gun Violence, the Bureau of Alcohol, Tobacco and Firearms (ATF), the Clinton Administration and the Obama Campaign illustrate the controversy surrounding gun control legislation with an emphasis on the enforcement of current law over the institution of reactionary proposals. In the wake of continued gun violence, like the Sandy Hook shootings, it becomes clear that better enforcement of existing gun control laws is the key to providing safety to American citizens; not the continued proposal of reactionary gun control laws.
Keith A. Findley (University of Wisconsin Law School) has posted Book Review: Understanding Failed Evidence (28 Criminal Justice (Forthcoming)) on SSRN. Here is the abstract:
This is a short book review of David Harris's new book, Understanding Failed Evidence: Why Law Enforcement Resists Science. Harris's book neatly and comprehensively summarizes the social science research on wrongful convictions, focusing on three types of flawed evidence: eyewitness identifications, forensic sciences, and confessions. Where the book makes its most significant contributions is in its exploration of why the criminal justice system has largely not yet responded to and incorporated the social scientific research about these types of evidence (which Harris largely attributes to cognitive biases), and his prescriptions both for what to reform, and how to do it.
Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though many casinos eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits.
By contrast, if players use a device to count cards, like a smartphone, they have committed a serious crime. For example, several iPhone apps helps players count cards and at least one has a “stealth mode” that lets users surreptitiously enter data and receive feedback. In response, the Nevada Gaming Control Board issued an open letter reminding the public that using such an app when betting at blackjack violates the state’s antidevice statute which provides for up to 6 years imprisonment for a first offense. Somehow using a device to augment our abilities to remember and to calculate turns a perfectly legal activity into an offense with a very serious penalty.
The fact that we do not criminalize natural, unassisted card counting raises interesting questions of criminal and constitutional law: Could we criminalize natural card counting without violating fundamental principles that protect thought privacy? (Email me for a manuscript on that question.) In this recently published paper, however, I focus on a puzzle about technological enhancement. Namely, can we justify criminalizing device-assisted card counting but not unassisted card counting?
The importance of the question extends beyond the world of blackjack and casino gaming because it appears, at least superficially, that antidevice statutes criminalize a kind of technological enhancement. Some ethicists distinguish therapies that seek to return us to normal, healthy functioning from enhancements that promise to give us extraordinary abilities. People are often much more comfortable with therapies (e.g., drugs or devices to treat attention deficit disorder) than with enhancements (e.g., drugs or devices to give us better-than-normal concentration).
As a historical matter, casinos lobbied for antidevices statutes in the 1980s to protect their revenue as computers were becoming more popular and accessible. I focus on a deeper question: Is there any moral justification for permitting an activity, like card counting, when it uses only our natural abilities but severely punishing the activity when it is technologically enhanced? I consider a couple of possible justifications for the differential treatment and suggest that both are lacking.
[Adapted from Criminalizing Card Counting at the Blackjack Table; Originally posted at Prawfsblawg]
Monday, April 29, 2013
Jon P. McClanahan (UNC School of Law) has posted Citizen Participation in Japanese Criminal Trials: Reimagining the Right to Trial by Jury in the United States (North Carolina Journal of International Law and Commercial Regulation, Vol. 37, No. 3, 2012) on SSRN. Here is the abstract:
If the United States were to reform contemporary jury trials to match the Founders’ conception of the right to trial by jury, how might they look? In recent years, we have gained insight into how to answer that question from an unlikely source: Japan.
This Article examines the introduction of citizen participation into the Japanese judicial system (the saiban-in seido) from a different perspective. Rather than focusing on the contemporary American jury system, this Article evaluates the Japanese reforms in light of the Founders’ conception of the right to trial by jury.
Lauren Sudeall Lucas (Georgia State University College of Law) has posted Reclaiming Equality to Reframe Indigent Defense Reform (Minnesota Law Review, Vol. 97, No. 4, p. 1197, 2013) on SSRN. Here is the abstract:
Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance and its inability to directly address issues of underfunding or to prospectively set substantive standards for indigent defense representation.
Baron-Evans & Hillier on the Sentencing Commission's Legislative Agenda to Restore Mandatory Guidelines
Amy Baron-Evans and Thomas W. Hillier II (Federal Public and Community Defenders and Federal Public Defender Office, Western District of Washington) have posted The Commission's Legislative Agenda to Restore Mandatory Guidelines (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
At a point in time when bipartisan Congressional leaders and the Attorney General are joining in a call to address the unsustainable costs and longstanding injustice associated with over-incarceration under mandatory sentencing rules, the United States Sentencing Commission has released a report on the impact of United State v. Booker, calling for a return to the very pre-Booker policies that caused our current crisis. In its rearview report, the Commission sets forth six recommendations to Congress that would constitute a return to a guideline system that is functionally no different than, and every bit as unconstitutional as, the mandatory system struck down in Booker. The proposals would eviscerate judges’ authority to consider the history and characteristics of the defendant and mitigating circumstances of the offense, and would suppress disagreement with the guidelines and policy statements, all contrary to Supreme Court law. If enacted into law, the proposals would result in years of litigation over their constitutionality and wreak havoc with a fully functional sentencing system to which judges, courts of appeals, probation officers, and lawyers have become accustomed over the past eight years.
Geoffrey S. Corn (South Texas College of Law) has posted Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance between Threat Response and Privacy Dilution (Penn State Law Review, Vol. 118, 2012) on SSRN. Here is the abstract:
This article addresses the existing gap between the practical need to respond rapidly and decisively to anonymous tips of car bomb terrorist threats and the existing tests for compliance with the Fourth Amendment. More specifically, I explain how a search (or seizure) of an automobile identified as matching the description of an anonymous tip that it contains a car bomb would not be justified under any of the existing exceptions to the warrant requirement of the Fourth Amendment. I then argue that the threat associated with this tactic of choice for homegrown lone-wolf terrorists necessitates an adjustment of these existing standards for assessing the “reasonableness” of a police response to such an anonymous tip. However, because such an adjustment will dilute the existing framework that enables post-search judicial critique of police judgments, this adjustment poses an associated risk that police seeking to exploit my proposed “terrorist tip” exception to skirt the normal requirements of the Fourth Amendment will subject citizens to subterfuge searches.
Questions presented from ScotusBlog:
- Burrags v. United States: Whether the crime of distributing drugs causing death is a strict liability crime without a cause requirement. Whether a person can be convicted of that crime under jury instructions which allow a conviction when the heroin contributed to death but was not the sole cause of the death.
Sunday, April 28, 2013
|1||4246||The Dangers of Surveillance
Neil M. Richards,
Washington University in Saint Louis - School of Law,
Date posted to database: March 25, 2013
|2||673||The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information
Columbia Law School,
Date posted to database: February 25, 2013
|3||483||Foreword: Accounting for Technological Change
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 17, 2013
|4||387||Knives and the Second Amendment
David B. Kopel, Clayton E. Cramer, Joseph Olson,
Independence Institute, College of Western Idaho, Hamline University - School of Law,
Date posted to database: March 24, 2013 [new to top ten]
|5||309||Lanny Breuer and Foreign Corrupt Practices Act Enforcement
Southern Illinois University School of Law,
Date posted to database: March 24, 2013
|6||221||Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions
Matthew C. Waxman,
Columbia Law School,
Date posted to database: March 21, 2013
Santa Clara University School of Law,
Date posted to database: March 3, 2013
|8||174||Policing the Firm
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: March 9, 2013 [9th previously]
|9||159||Lafler and Frye: A New Constitutional Standard for Negotiation
Texas Tech University School of Law,
Date posted to database: March 21, 2013 [10th previously]
|10||147||Antitrust Corporate Governance and Compliance
Rosa M. Abrantes-Metz,D. Daniel Sokol,
Global Economics Group, LLC, University of Florida - Levin College of Law,
Date posted to database: April 10, 2013 [new to top ten]