Monday, February 18, 2013
Thom Brooks (Durham University) has posted Stakeholder Sentencing (Julian V. Roberts and Jesper Ryberg (eds), Popular Punishment: On the Normative Significance of Public Opinion for Penal Theory, Oxford: Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
Recent years have witnessed increasing interest in how to provide new avenues for incorporating a greater public voice in sentencing. This development is the product of a widely perceived growing crisis concerning the lack of public confidence in sentencing decisions. One important factor is negative media headlines that draw attention to cases that contribute to feeding a culture of sentencing disapproval by the public where punishments are believed to be undeservedly lenient. A second factor is the recognition that victims should have greater involvement in the criminal justice system, including sentencing decisions. But how might we improve public confidence and provide a greater voice for victims without sacrificing criminal justice in favour of mob rule?
James Austin , Michael Jacobson and Inimai M. Chettiar (JFA Institute , Vera Institute of Justice and New York University School of Law) have posted How New York City Reduced Mass Incarceration: A Model for Change? on SSRN. Here is the abstract:
Over the last two decades, crime and violence plummeted dramatically in New York City. Beginning in the 1990s, the New York Police Department shifted its policing practices, implementing a “broken windows” policing strategy which has morphed into the now infamous “stop-and-frisk” practices. During this same time period, the entire incarcerated and correctional population of the City – the number of people in jails and prisons, and on probation and parole – dropped markedly. New York City sending fewer people into the justice system reduced mass incarceration in the entire state.
Erica J. Hashimoto (University of Georgia Law School) has posted Reclaiming the Equitable Heritage of Habeas on SSRN. Here is the abstract:
Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these five bars exhibit significant equitable characteristics. The only outlier is the Court’s retroactivity bar, which prohibits relief whenever an applicant relies on a new rule of constitutional procedure. Taking no account of the blamelessness of the applicant’s conduct or the nature of the claim, the law of retroactivity applies in a wooden fashion that is at odds with principles of equity.
Sunday, February 17, 2013
Orin Kerr has this post at The Volokh Conspiracy. In part:
I think it may be analytically helpful to the Court to break down the “search” question into two stages. First, there’s the buccal swab. But second, there’s the analysis of the sample. Under Skinner v. Railway Labor Executives Association, 489 U.S. 602, 616 (1989), analyzing the sample to obtain the DNA profile is a second search: It reveals information about the DNA not otherwise visible, searching it much like opening a closed container. (At the same time, entering the profile into the DNA database and obtaining the match would not be a search. The data contained in the profile was disclosed to the police as the fruit of the search, and once the police have the data in their possession they can enter it into a database and manipulate it without further limits from the Fourth Amendment.) So the legality of the government’s conduct boils down to the reasonableness of two searches: The buccal swab, and the creation of the DNA testing.
|1||12708||Ham Sandwich Nation: Due Process When Everything is a Crime
Glenn Harlan Reynolds,
University of Tennessee College of Law,
Date posted to database: January 20, 2013
|2||427||Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras
James J. Brudney, Lawrence Baum,
Fordham University - School of Law, Ohio State University (OSU) - Department of Political Science,
Date posted to database: January 2, 2013 (3rd last week)
|3||424||Grading the Foreign Corrupt Practices Act Guidance
Southern Illinois University School of Law,
Date posted to database: December 14, 2012 [2nd last week]
|4||221||Eyewitness Memory for People and Events (Chapter 25)
Gary L. Wells, Elizabeth F. Loftus,
Iowa State University, Department of Psychology , University of California, Irvine - Department of Psychology and Social Behavior,
Date posted to database: January 17, 2013 [6th last week]
|5||181||What is Philosophy of Criminal Law?
Fordham University School of Law,
Date posted to database: December 16, 2012 [7th last week]
|6||149||Review of Patricia S. Churchland, 'Braintrust: What Neuroscience Tells Us About Morality'
Georgetown University - Law Center,
Date posted to database: December 29, 2012 [9th last week]
|7||146||Narrative, Truth & Trial
Lisa Kern Griffin,
Duke University - School of Law,
Date posted to database: December 16, 2012 [8th last week]
|8||137||David Baldus and the Legacy of McCleskey v. Kemp
Samuel R. Gross,
University of Michigan Law School,
Date posted to database: January 15, 2013 [10th last week]
Adam B. Cox, Thomas J. Miles,
New York University (NYU) - School of Law, University of Chicago - Law School,
Date posted to database: July 17, 2012 [new to top ten]
|10||118||Manson and its Progeny: An Empirical Analysis of American Eyewitness Law
Nicholas Alden Kahn-Fogel,
University of Arkansas at Little Rock - William H. Bowen School of Law,
Date posted to database: January 5, 2013 [new to top ten]