Saturday, May 25, 2013
Ennis McBride (Institute for the Interdisciplinary Study of the Law) has posted The Practical Application of Probability in Court: Advancing Science or Timeless Art? on SSRN. Here is the abstract:
The application of probability to issues of proof and evidence is now a well-developed academic field, forming as it does a central part of the ‘science of evidence’. But how far has that science developed in the practical setting of the court room? Starting from its roots and reviewing its progress to the present day, it is argued that while the science which supports statistical evidence has become ever more sophisticated, almost nothing has changed in English courts so far as what happens during the process of a trial. In this respect, the formal court dress worn by English advocates, largely unchanged since 1685, is emblematic of the lack of progress of probability theory since its inception.
Steve Sheppard (University of Arkansas) has posted Jury, Liberty, and Decay on SSRN. Here is the abstract:
The jury is an ancient institution for the protection of an individuals’ liberty against wrongful accusation or punishment by the state. There are functional reasons why a group of laypersons may perform this task, but it is not an absolute assurance of liberty and justice. Among the risks to juror independence are ever more powerful efforts to alter the culture from which jurors come to the legal institution. Even so, its role is considered essential for the protection of liberty in the U.S. criminal justice system. However, the role is in fact in decline as a variety of forms of action are diverted from jury review. This essay considers why such diversions have grown and finds part of the fault in the interests of litigants and officials. The role of the jury is changing, and perhaps only a crisis of liberty may save it.
Friday, May 24, 2013
Dominic Saglibene has posted The U.K. Bribery Act: A Benchmark for Anticorruption Reform in the U.S. (Transnational Law & Contemporary Problems, Vol. 23, 2014 (Forthcoming)) on SSRN. Here is the abstract:
This Note will argue that the U.S. should look to the U.K. Bribery Act in amending the Foreign Corrupt Practices Act ("FCPA") to criminalize foreign bribery across the board. Part I will introduce the thesis. Part II will explain the relationship between public and private bribery, and outline how some nations have come to recognize that overlooking private bribery undermines anticorruption laws and policies in general. Part III will describe the FCPA and other anti-bribery laws in the U.S., and present the U.K. Act as an improvement on the FCPA. Part IV will then discuss U.S. prosecutions - especially U.S. v. Carson - demonstrating the inadequacy of American law against bribery in the foreign private sector. Part V will conclude.
Barbara Creel (University of New Mexico School of Law) has posted The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative (Michigan Journal of Race & Law, Vol. 18, p. 317, Spring 2013) on SSRN. Here is the abstract:
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty.
Peter K. Westen (University of Michigan Law School) has posted The Significance of Transferred Intent (Criminal Law and Philosophy, vol. 7, pp. 321-50 (2013)) on SSRN. Here is the abstract:
The doctrine of transferred intent (or “transferred malice” in England) typically provides that if A attempts to harm B but, because of bad aim, misses and accidentally causes the harm to befall C, A’s harmful intent vis-à-vis B is transferred to C, thus rendering A guilty of intentionally harming C. Commentators acknowledge the doctrine to be a legal fiction, but they differ regarding whether the fiction produces just results, some believing it does, others believing that A is guilty at most of attempting to harm B rather than intentionally harming C. Commentators who agree that the fiction produces just results nevertheless differ regarding whether to retain the fiction or whether to replace it by ruling that A’s intent to harm “a” person is the only intent that signifies for crimes of intentional harm, regardless of whom A eventually harms. Doug Husak sought to achieve reflective equilibrium between intuition and theory regarding bad-aim cases by proposing in 1996 that A be punished for attempting to harm B (rather than for harming C) but be sentenced as if he had harmed B. I once believed that Husak was correct. But I now have doubts, in part because Husak, along with others, cannot explain why the strength of people’s intuitions regarding A’s responsibility in bad-aim cases depends upon (1) C’s being a reasonably foreseeable victim, and (2) C’s being harmed by the same kind of threat that A originally unleashed against B. I argue that one cannot achieve reflective equilibrium in bad-aim cases without inquiring into why resulting harm matters in criminal law, and that when one does, one discovers that just as people’s intuitions regarding whether intentional harms are “proximate” depend upon how resulting harms occur, so, too, people’s intuitions regarding whether an actor is guilty of “intentional” harm depend upon how resulting harms come about.
Benjamin Monnery (University of Lyon 2 - Groupe d'Analyse et de Théorie Economique (GATE)) has posted The Determinants of Recidivism among Ex-Prisoners: A Survival Analysis on French Data on SSRN. Here is the abstract:
This article explores the main determinants of the hazard of recidivism among ex-prisoners. We use a nationally-representative sample of prisoners released in 1996-1997 in France, drawn from a 5-year follow-up survey run by the French correctional administration. We estimate semiparametric duration models which deal with violations of the proportional hazards hypothesis. Our results confirm the importance of gender, age, nationality, access to employment and prior convictions on recidivism within five years after release from prison. We also find significant differences in hazards of recidivism by type of initial offense, penal status at entry, and type of release (early release under parole, etc.), while controlling for prison fixed effects. Finally, our study casts doubt on the influence of certain variables (marital status at entry, education, homelessness) and on the effectiveness of semi-liberte as a way to prevent recidivism.
Michele Goodwin (University of Minnesota Law School) has posted Law's Limits: Regulating Statutory Rape Law (Wisconsin Law Review, 2013) on SSRN. Here is the abstract:
This Article examines statutory rape cases of the last decade and submits that both the apparatus to police sexual violence against minors — statutory rape laws — as well as their application against consenting minors create legally untenable, absurd results that frequently impose legal and extralegal burdens on minors that may exceed that of adult, convicted rapists. No coherent framework has been offered by a politician that responds pragmatically to the empirical realities of adolescent sexuality. Neither federal nor state legislatures offer a coherent, well-articulated approach to militate against the harshest criminal punishments demanded by statutory rape provisions. Indeed, judges interpret and enforce statutory rape cases in a manner that entrenches stereotypes and biases. On the other hand, few scholars wrestle with the broader contemporary applications of statutory rape law despite recent decades of absurd results and disproportionately harsh penalties against teens. The Article offers two novel ways forward to address teen sex and statutory rape.
Elizabeth A. Sheehy (University of Ottawa - Faculty of Law (Common Law)) has posted Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women (Sexual Assault in Canada: Law, Legal Practice and Women’s Activism, Elizabeth Sheehy, ed., University of Ottawa Press, June 2012) on SSRN. Here is the abstract:
In this section, Elizabeth A Sheehy’s contribution focuses on one important feature of the 1992 feminist-inspired law reforms — the new “reasonable steps” requirement for the “mistaken belief in consent” defence. Her paper picks up on the themes of resistance to rape law reforms, evocation of rape mythologies, and the misuse of “expert” evidence. She reviews the legal interpretation of the revised “mistake of fact” defence, identifying judicial resistance to its implementation and the subtle re-emergence of rape myths in judges’ willingness to accept “mistake” defences when the complainant is unconscious. Like Lucinda Vandervort in Part I, Elizabeth urges Crown prosecutors to exercise vigilance to ensure that sexual assault law is interpreted consistently with its aims. To do so, they must challenge “expert” evidence introduced by defence on the question of women’s states of consciousness, remind judges of the “reasonable steps” requirement, expose rape myths embedded in defence arguments, and appeal decisions where judges mistakenly apply or fail to apply the requirement.
Thursday, May 23, 2013
Patrick Metze (Texas Tech University School of Law) has posted Speaking Truth to Power: The Obligation of the Courts to Enforce the Right to Counsel at Trial (45 Texas Tech Law Review (2012)) on SSRN. Here is the abstract:
Professor Metze takes a critical look at the historical and contemporary law on the right to counsel and the evolution of what measure the courts must use to review trial counsel’s performance. By the use of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, the courts have settled on the proper measure of counsel’s representation. Struggling with the new rights extended to former servants and slaves, the courts following the Civil War fought a slow but steady battle to implement the constitutional guarantees of the Bill of Rights to all citizens. After a century, the Supreme Court finally guaranteed the right to counsel to all facing the loss of life or liberty. During the twentieth century, it was determined that more than counsel’s mere presence was needed. This Article addresses the constitutional right to counsel, what standard of effectiveness a defendant may expect his counsel to perform, and the history of these concepts. Finally, it analyzes the practical applications of the right to counsel and the court’s application of its attorney competence standards, leading to the conclusion that those in power may think they do no harm resisting the temptations of change, but by their deeds, if only for their own political survival, the least among us survive, and the smell of systemic disease lingers.
James E. Moliterno (Washington and Lee University - School of Law) has posted Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client’s Confidences to Rectify the Wrongful Conviction of Another? (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on SSRN. Here is the abstract:
Awareness is increasing that the U.S. criminal justice system produces convictions of the innocent. Currently, except in two states (Alaska and Massachusetts), lawyer confidentiality law prevents a lawyer from revealing client information to rectify the wrongful conviction of an innocent. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client’s information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor-weighing to determine if the wrongly convicted is suffering “substantial bodily harm.” Despite a broader view that would dictate revelation of such information, the individual defense lawyers and prosecutors involved are likely to resist results of factor-weighing that favor revelation. The Alaska and Massachusetts approach is cleaner but still requires what may be unpalatable to some: Inflicting harm on one’s own client to aid an innocent-other. As confidence in the justice system’s ability to convict only the guilty wanes, policy-makers should consider adopting a clearer path to revelation of client information when necessary to rectify the conviction of an innocent who is currently incarcerated.
Wednesday, May 22, 2013
Tessa L. Dysart (Regent University School of Law) has posted The Protected Innocence Initiative: Building Protective State Law Regimes for America’s Sex-Trafficked Children (Columbia Human Rights Law Review, Vol. 44, 2013) on SSRN. Here is the abstract:
Under the federal Trafficking Victims Protection Act of 2000 (TVPA), the prostitution of minors under the age of eighteen falls specifically within the crime of human trafficking, which makes prostituted children trafficking victims. Human sex trafficking includes the “recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing], obtain[ing], or maintain[ing]” of minors for commercial sexual exploitation. The passage of the TVPA increased political and public awareness of the existence of human trafficking, but initially most of this awareness was focused on trafficking across international borders. In recent years, however, the federal government and non-profit organizations have turned their attention to the trafficking of U.S. citizens in general and domestic minor sex trafficking in particular.
Ricardo J. Bascuas (University of Miami - School of Law) has posted The Fourth Amendment in the Information Age (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In 2013, the Supreme Court tacitly conceded that the Expectations of Privacy Test used since 1967 to assess claims of Fourth Amendment violations was inadequate. It asserted that the previous property-based test for Fourth Amendment violations had never, despite widespread agreement to the contrary, been overruled. The Court compounded its artfulness by applying a new, significantly weaker trespass test that, like the Expectations of Privacy Test, enjoys no legal pedigree. This new trespass test, which is to be applied together with the Expectations of Privacy Test, suffers from the same defect as the test it purportedly supplements. It does not require the government to respect private property rights absent probable cause.
Tuesday, May 21, 2013
Doug Berman at Sentencing Law & Policy discusses the implications of a Sixth Circuit case
declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date. This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.
. . .
A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences. That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit.
From the New York Times:
After listening to two months of testimony on the New York Police Department’s stop-and-frisk practices, Judge Shira A. Scheindlin left little doubt about her views of their effectiveness in helping detect criminal behavior.
. . .
On Monday, Judge Scheindlin asked the lawyers what evidence was required before she could conclude that a police officer’s decision to stop someone had been influenced by race. It is a critical question, particularly because there is no evidence that the officers used racial slurs or overtly racial language when stopping any of the individual plaintiffs who testified in court.
In the absence of overt racial slurs, Judge Scheindlin repeatedly asked a city lawyer, would it be appropriate to infer that a police encounter was racially motivated if an officer stopped a black man with no apparent basis?
Steven Thomas Fazzi has posted A Primer on California's 2011 Corrections Realignment: Why California Placed Felons Under County Control (McGeorge Law Review, Vol. 44, No. 2, 2013) on SSRN. Here is the abstract:
California's 2011 corrections realignment marked a dramatic shift in the way the state apportions felon management responsibilities between its central government and its local governments (in particular its 58 counties). This article offers a brief summation of the corrections realignment legislation. It discusses the dual causes of the realignment as well as the legislation's projected consequences. This article also provides appendices summarizing the legislation's key statutory changes.
Monday, May 20, 2013
Eugene Volokh has this post at The Volokh Conspiracy discussing the controversy over prosecution in a same-sex relationship. In part:
The story alleges that the 15-year-old girl’s parents are upset about the same-sex nature of the relationship, so it’s possible that their motivation in complaining to the police relates to that. (I’m not certain that this is so, since it’s quite possible that the parents would also be upset about their 15-year-old daughter having an opposite-sex relationship with an 18-year-old man, so the same-sex nature of the relationship may not even be a but-for cause of the complaint; but let’s set that aside for now.) But the police and the school can’t just say, “Your motivation for the complaint is hostility against lesbianism, so we’ll refuse to act on the complaint, even though this is a crime that we’d take seriously if we thought your complaint was motivated by general disapproval of sex between 15- and 18-year-olds.” And absent some evidence that Florida authorities turn a blind eye on parental complaints about 18-year-old men having sex with 15-year-old girls, I don’t really see this as a case about “same-sex relationship[s]” as such.
Samantha Goosen (University of KwaZulu-Natal - University Of KwaZulu-Natal) has posted Battered Women and the Requirement of Imminence in Self-Defence (Potchefstroom Electronic Law Journal, Vol. 16, No. 1, 2013) on SSRN. Here is the abstract:
Should the South African courts abolish the traditional imminence standard, something must be used to stand in its place. The identification of the various alternatives which have been suggested to replace imminence - most notably the establishment of the "reasonable woman standard" as advanced in the case of S v Engelbrecht 2005 (92) SACR 41 (W) - has moved the law of self-defence into the realm of subjectivity. The end result not only undermines self-defence as a justification defence, but is also unworkable for a number of reasons. For instance, utilising expert testimony to explain how the battered woman’s syndrome affects individual perception would leave a judge with no meaningful way to determine if that abused woman’s belief in the imminence of danger was reasonable, even if viewed from her distorted perspective. It is suggested that no reference need be made to the "reasonable battered woman", since South African courts already do this to a limited extent by taking a number of factors into account in determining if the abused woman acted reasonably. By rethinking certain factors in the situation as a set of relatively innocuous normative propositions, the abused woman’s actions can be judged in accordance with standard propositions in the law of self-defence.
Sunday, May 19, 2013
|1||4572||The Dangers of Surveillance
Neil M. Richards,
Washington University in Saint Louis - School of Law,
Date posted to database: March 25, 2013
|2||696||Foreword: Accounting for Technological Change
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 17, 2013
|3||395||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
|4||326||Lanny Breuer and Foreign Corrupt Practices Act Enforcement
Southern Illinois University School of Law,
Date posted to database: March 24, 2013
|5||284||Background Checks and Murder Rates
Clayton E. Cramer,
College of Western Idaho,
Date posted to database: April 12, 2013
|6||247||Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions
Matthew C. Waxman,
Columbia Law School,
Date posted to database: March 21, 2013
|7||191||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 [9th last week]
|8||171||Lafler and Frye: A New Constitutional Standard for Negotiation
Texas Tech University School of Law,
Date posted to database: March 21, 2013 [10th last week]
|9||145||Federal Public Defense in an Age of Inquisition
Federal Defenders of New York,
Date posted to database: May 2, 2013 [new to top ten]
Loyola Law School Los Angeles,
Date posted to database: March 23, 2013 [new to top ten]