Monday, May 6, 2013
Harold J. Krent (Chicago-Kent College of Law) has posted Retroactivity and Crack Sentencing Reform on SSRN. Here is the abstract:
This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only.
Taylor E. Whitten has posted Under the Guise of Reform: How Marijuana Possession Is Exposing the Flaws in the Criminal Justice System's Guarantee of a Right to a Jury Trial (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Recent Supreme Court decisions have restricted a criminal defendant’s right to a jury trial. By setting the threshold to trigger a jury trial right at six months imprisonment, the Supreme Court once feared that the legislature might classify serious crimes as petty, and take away a defendant’s right to a jury trial. But what if the opposite happened? What if the legislature classified an offense that Americans no longer believed was a crime out of the reach of their input – the jury. This is what has occurred in some states with minor marijuana possession. Even though a majority of Americans believe that marijuana possession should be legalized, some states are continuing to prosecute it as a crime without a jury trial. While waiting for marijuana reform, thousands of defendants will be prosecuted for a crime without the judicial check of a jury trial. Perhaps the electorate will respond through their votes, but democracy takes time, and at a cost to all the offenders who await judgment. This Note will examine how this offense managed to fall through the cracks of the judicial and legislative system at both the federal and state level. In highlighting these issues, this Note argues that the justice system should correct its flaws, and prevent future offenses from the same fate.
Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.
From Orin Kerr at The Volokh Conspiracy. In part:
I recently mentioned my new short essay, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013), about how the Supreme Court should resolve the lower court division on the Fourth Amendment rule for searching a cell phone incident to arrest. In light of that, I thought I would flag this morning’s decision by the Florida Supreme Court deepening the lower court division. In the new case, Smallwood v. State, the court ruled that the police can routinely seize a cell phone incident to arrest, but they generally need a warrant to search it absent a demonstrated risk that evidence on the phone could be destroyed after it had been seized.
Lawrence A. Cunningham (George Washington University Law School) has posted Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform (65 FLORIDA LAW REVIEW (2013, Forthcoming)) on SSRN. Here is the abstract:
When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous and implementing improvised reforms afterwards may have severe unintended consequences — particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases — Arthur Andersen, AIG and Bristol-Myers Squibb — this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions would promote public confidence in prosecutorial decisions to broker firm-specific governance reforms currently lacking and increase their effectiveness. The Article, therefore, contributes a novel perspective on the controversial practice: though substantial commentary urges prosecutors to avoid intruding into corporate governance, this Article explains the importance of prosecutors investing in it.
Caleb E. Mason and David Bjerk (Miller Barondess, LLP and Claremont Colleges - Robert Day School of Economics and Finance) have posted Inter-Judge Sentencing Disparity on the Federal Bench: An Examination of Drug Smuggling Cases in the Southern District of California (Federal Sentencing Reporter, Vol. 25, No. 3, 2013) on SSRN. Here is the abstract:
In this paper we exploit a unique dataset we collected directly from the arrest narratives filed in "border bust" drug smuggling cases to analyze inter-judge sentencing disparity. The comprehensiveness of our data combined with the specific sentencing laws that apply to drug trafficking allow us to control very precisely for variations in offense conduct, offender characteristics, and criminal history. We develop a new statistical model of sentencing disparity that we believe is more accurate than previous attempts.
Sunday, May 5, 2013
|1||4420||The Dangers of Surveillance
Neil M. Richards,
Washington University in Saint Louis - School of Law,
Date posted to database: March 25, 2013
|2||563||Foreword: Accounting for Technological Change
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 17, 2013 [3rd last week]
|3||389||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 [4th last week]
|4||313||Lanny Breuer and Foreign Corrupt Practices Act Enforcement
Southern Illinois University School of Law,
Date posted to database: March 24, 2013 [5th last week]
|5||280||Background Checks and Murder Rates
Clayton E. Cramer,
College of Western Idaho,
Date posted to database: April 12, 2013 [new to top ten]
|6||231||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||182||Policing the Firm
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: March 9, 2013
|9||176||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 [10th last week]
|10||164||Lafler and Frye: A New Constitutional Standard for Negotiation
Texas Tech University School of Law,
Date posted to database: March 21, 2013 [9th last week]
Melanie Janelle Murchison (Queen's University Belfast - School of Law) has posted Law, Morality and Social Discourse: Jury Nullification in a Canadian Context on SSRN. Here is the abstract:
In the thirty years since the inception of the Canadian Charter of Rights and Freedoms there have been three cases of attempted jury nullification, resulting in varies degrees of success. This thesis will provide an overview of the process jury nullification as well as a discussion on the current Canadian jurisprudence, including all three cases (R. v. Morgentaler, R. v. Latimer and R. v. Krieger). This analysis will be undertaken using two competing theoretical viewpoints: those of neo-natural law theorist Ronald Dworkin and social theorists Alan Hunt and Michel Foucault. Ultimately this thesis will conclude that while it is beneficial to approach the phenomenon of jury nullification using Dworkin’s theory of “law as integrity”, it alone cannot sufficiently explain the process and it is through using both natural law and social theory that jury nullification can be best understood.