Saturday, July 27, 2013
Simon Stern (University of Toronto - Faculty of Law) has posted William Blackstone, Commentaries on the Laws of England, Vol. 4 (1769) (Markus Dubber, ed., Foundational Texts in Modern Criminal Law (Oxford University Press), Forthcoming) on SSRN. Here is the abstract:
This book chapter discusses the fourth volume of Blackstone's Commentaries (1769), asking what contribution this volume makes to English criminal law. Issues addressed include the general structure of Blackstone's discussion, the relation between Blackstone's treatment and those of his precursors (especially Sir Matthew Hale and William Hawkins), the historical and literary range of Blackstone's references, the nature of his legal reform agenda, and his conception of the book's audience.
Friday, July 26, 2013
Bernard E. Harcourt (University of Chicago - Department of Political Science) has posted Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law (Foundational Texts in Modern Criminal Law (ed. Markus Dubber; Foundation Press), Forthcoming) on SSRN. Here is the abstract:
Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions of Beccaria’s work and provide an outline of a history of the foundations of modern criminal law. In becoming a classic text that has been so widely and varyingly cited, though perhaps little read today, "On Crimes and Punishments" may be used as a mirror on the key projects over the past two centuries and a half in the domain of penal law and punishment theory — and this essay hopes to contribute, in a small way, to such an endeavor. In the end, we may learn as much about those who have appropriated and used Beccaria than we would about Beccaria himself — perhaps more.
Alfred L. Brophy (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted The Nat Turner Trials (91 North Carolina Law Review 1817-80 June 2013) on SSRN. Here is the abstract:
“The Nat Turner Trials” locates the trials of slaves in the wake of the Nat Turner rebellion in the context of common, and statutory, law and extra-legal responses to slavery in Virginia and North Carolina during the early 1830s. The Article shows how trials were part of the whole system of slavery, held together by norms of white supremacy promulgated in the press, the pulpit, and on plantations. Decisions from local courts to appellate courts gave broad power to slave owners to control enslaved people. There was little done in defense of slaves, though in some ways the states’ criminal procedure statutes and the actions of some slave owners and defense lawyers may have helped to limit the number of convictions.
Thursday, July 25, 2013
Jeffrey J. Rachlinski , Chris Guthrie and Andrew J. Wistrich (Cornell Law School , Vanderbilt University - Law School and Independent) have posted Contrition in the Courtroom: Do Apologies Affect Adjudication? (Cornell Law Review, Vol. 98, No. 1189, 2013) on SSRN. Here is the abstract:
Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to a judge is often unhelpful and can even be harmful.
From the New York Times:
WASHINGTON — A deeply divided House defeated legislation Wednesday that would have blocked the National Security Agencyfrom collecting vast amounts of phone records, handing the Obama administration a hard-fought victory in the first Congressional showdown over the N.S.A.’s surveillance activities since Edward J. Snowden’s security breaches last month.
The 205-to-217 vote was far closer than expected and came after a brief but impassioned debate over citizens’ right to privacy and the steps the government must take to protect national security. It was a rare instance in which a classified intelligence program was openly discussed on the House floor, and disagreements over the program led to some unusual coalitions.
Hanners blew the whistle on the department’s tactics and was eventually fired for refusing to comply and keep quiet. He says that each officer was required to make 100 contacts each month, which included tickets, arrests, field interviews, and warnings. This equates to 72,000 contacts a year in a 50,000 person town. His claims are backed up by audio recordings of his superiors he made. The Auburn police department declined requests to be interviewed for this story.
Wednesday, July 24, 2013
From the Huffington Post:
The public defender system hasn't just been stripped bare by sequestration, its bones have been chiseled away as well. There has been a 9 percent reduction in the roughly $1 billion budget for federal public defender's offices, while federal defenders in more than 20 states are planning to close offices. Careers have been ended and cases have been delayed. All of it has occurred in the name of deficit reduction -- and yet, for all the belt-tightening being demanded of the nation's public defenders, money is not actually being saved.
When federal public defenders aren’t able to take a case because of a conflict, or because their workload is too great, the job falls to private court-appointed attorneys known as Criminal Justice Act panel attorneys. Those lawyers are paid from the same pool of money as federal public defenders, but they cost much more and, according to some studies, are less effective.
From the L.A. Times:
WASHINGTON -- The Obama Administration has joined with GOP leaders in a furious lobbying effort against a measure up for a vote late Wednesday in the House of Representatives that would curtail the National Security Agency’s bulk collection of U.S. calling records revealed last month by Edward Snowden.
The House is expected to vote this evening on an amendment by Rep. Justin Amash, (R-Michigan), a libertarian Republican who has enlisted some liberal Democrats to his cause—that would require the government to identify a person under investigation before it is able to collect records of calls made to and from that person and his associates.
Daniel C. Richman (Columbia Law School) has posted Framing the Prosecution on SSRN. Here is the abstract:
Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts -- to put investigations on trial -- we need to think more about when and how those doubts can be allayed. What tools should we give jurors to assess the alleged holes – the “reasonableness” of an alleged doubt? And how can the prosecution try to mend them? How we answer these questions will affect the value of trials as a systemic regulatory mechanism in a world with very few trials. Sparked by Dan Simon’s work on the “diagnosticity” of criminal trials, this essay proposes a quiet reframing of trials as regulatory interventions into a sparsely regulated world.
John Mikhail (Georgetown University Law Center) has posted New Perspectives on Moral Cognition: Reply to Zimmerman, Enoch, and Chemla, Egré & Schlenker (Jersusalem Review of Legal Studies (Forthcoming)) on SSRN. Here is the abstract:
This essay responds to three commentaries on my book, Elements of Moral Cognition, as part of a symposium that will be published in the Jerusalem Review of Legal Studies. . . .
The essay addresses a number of topics raised by these commentaries, including the debate between rationalism and empiricism; whether the Principle of Double Effect is necessary and sufficient to explain common moral intuitions; whether my trolley problem data are replicable; whether Rawls was a moral psychologist; substantive differences between moral intuitions and linguistic intuitions; whether my normative and metaethical assumptions are defensible; the role of idealization and statistical data in moral psychology; the distinction between categorical and gradient moral judgments; the role of probabilistic factors in moral judgment; and the relation between moral judgments and causal judgments.
Tuesday, July 23, 2013
From the L.A. Times, this op-ed by Joelle Anne Moreno (Florida International University) seems to draw a rather indirect lesson from the Zimmerman verdict:
In 2005, when Florida adopted the nation's first "stand your ground" law, our collective moral understanding of what constitutes a justified killing was transformed. In endorsing more aggressive self-protection, the Florida Legislature tacitly acknowledged that guns would play an enhanced role in the state.
. . .
So what happens when, despite all of the evidence to the contrary, you convince people that they must stand their ground, armed to the hilt, against a scourge of violent crime? In an extensive study published in June 2012 in the Tampa Bay Times, the effects of this combination were chillingly obvious.
The law has been used in more than 200 cases since 2005, with defendants ranging in age from 14 to 81. Nearly 70% of defendants who invoked the law were set free. Defendants were significantly more likely to prevail if the victim was black, and the defense worked even in cases in which deadly force was used against unarmed victims by people who developed a "reasonable fear" for their life and safety only after provoking the victim.
. . .
It is hard to argue that this trial or verdict was determined by the "stand your ground" law, which was only introduced via Seminole County Circuit Judge Debra S. Nelson's jury instruction that the defendant "had no duty to retreat and had the right to meet force with force." But a micro-focus on the trial ignores a more fundamental question. To what extent do we, as a state and a nation governed by law, bear responsibility for what happened to Trayvon Martin by encouraging near-universal gun ownership and endorsing vigilante self-defense?
From the New York Times, some suggestions from James Carr, a former FISA judge. In part:
CONGRESS created the Foreign Intelligence Surveillance Court in 1978 as a check on executive authority. Recent disclosures about vast data-gathering by the government have raised concerns about the legitimacy of the court’s actions. Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.
Kit Kinports (Penn State University Dickinson School of Law) has posted The Dog Days of Fourth Amendment Jurisprudence (Northwestern University Law Review Colloquy, Vol. 108) on SSRN. Here is the abstract:
This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones flowing from the drug dog decisions lack precision and therefore create an inherent risk of overinclusion or underinclusion. Here, the Article concludes, Harris exhibits overconfidence in the accuracy of drug dog alerts, while Jardines threatens to underprotect less privileged socio-economic classes.
Thom Brooks (Durham University) has posted Criminal Harms (Brooks, Thom. 2013. "Criminal Harms" in T. Brooks (ed.), Law and Legal Theory. Boston: Brill, Forthcoming) on SSRN. Here is the abstract:
What is a crime? A common answer is that crimes are harms. One particular argument is that morality forms the connection between crimes and harms: crimes are not any kind of harm, but specifically a kind of immorality. This position is consistent with natural law jurisprudence which claims that law and morality are inseparably linked. It is also consistent with standard defences of retribution whereby punishment is justified where deserved and to the degree deserved. Retributivist desert is present for individuals that possess some degree of moral responsibility for causing or attempting to cause evil. For example, the murderer deserves severe punishment because he is morally responsible for another person’s death and this act is sufficiently evil to warrant severe punishment.
Monday, July 22, 2013
From Sentencing Law and Policy, a guest post by John Quigley (Ohio State Law). In part:
For the United States, the significance of the case is that the European Court of Human Rights has previously ruled that an extradition request must be denied if the individual would be subjected in the requesting state to treatment or punishment that would violate Article 3 if carried out by a state party to the European Convention on Human Rights. A few years ago, a man named Ralston Wellington was wanted in Missouri on a murder charge. He had gone to the UK, and US authorities requested his extradition. He argued that he might be subjected to life without parole in Missouri and fought extradition on that basis, invoking Article 3. Wellington was extradited in 2010, but only after the matter went up to the House of Lords, then the highest rung in the UK judicial ladder, where sentencing procedures in Missouri were analyzed in detail.
After the Vinter judgment, a person in Wellington’s situation would stand a better chance of avoiding extradition.
The New Jersey Supreme Court [official website] ruled [opinion, PDF] Thursday that police must obtain search warrants before obtaining tracking information from cell phone providers. The unanimous ruling marks the first time a state supreme court has recognized aFourth Amendment [Cornell LII backgrounder] protection for cell phone location data. In the decision, Chief Justice Stuart Rabner noted that cellphone tracking technology has the potential to violate a person's privacy rights and must be subject to judicial review. Rabner also noted that no warrants will be required in emergency situations.
JaneAnne Murray (University of Minnesota Law School) has posted A Perfect Prosecution: The People of the State of New York v. Dominique Strauss-Kahn (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
The presumption of innocence may be the foundational principle of the American criminal justice system, but the presumption of guilt is its operational force. The U.S. Supreme Court acknowledged this reality in two notable criminal law decisions in 2012, Lafler v. Cooper and Missouri v. Frye, when it described the criminal process as “a system of pleas, not a system of trials”.
People v. Strauss-Kahn is an ideal lens through which to examine this process. It is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed.
César Cuauhtémoc García Hernández (Capital University Law School) has posted Book Review: Social Control and Justice: Crimmigration in the Age of Fear (Crime, Law, and Social Change (2013, Forthcoming)) on SSRN. Here is the abstract:
It is not often that a new area of law emerges. Since the 1980s, however, criminal law and immigration law have increasingly converged to do just that. Crimmigration law, as this new field is called, features a distinct mélange of substantive law and law enforcement techniques. In Social Control and Justice: Crimmigration in the Age of Fear (2013), an international group of scholars from a variety of disciplines addresses crimmigration law’s development in the United States and Europe. This book review highlights the collection’s key contributions to our understanding of crimmigration law, and identifies unexplored questions for future research.