Friday, January 30, 2015
Joe McGrath (UCD) has posted The Prosecution of White-Collar Crime in a Developing Economy: A Case Study of Ireland in the 20th Century (in: Van Erp, J.; Huisman, W.; Vande Walle, G (eds). The Routledge Handbook of White-Collar and Corporate Crime in Europe. Oxford: Routledge) on SSRN. Here is the abstract:
This contribution critically analyses how social, political, and economic conditions in the 20th century in Ireland created a context where there was no cultural recognition of the dangers posed by ineffective corporate regulation. In doing so, it analyses the particular framework of competences, practices, attitudes and discourses that impacted on policy choices and supported the routine marginalisation of corporate affairs within the legal system. It is shown that Ireland had an agrarian economy, with low levels of crime, and relatively low levels of corporate activity. Consequently, the State was not concerned with issues of corporate and white-collar crime. This is demonstrated by the chronic failure to review company law with any regularity, the continued culture of policy imitation with the UK, the explicit statements in parliament detailing the disinterest in corporate affairs, and the willingness to embrace light-touch regulation as part of a package to court foreign enterprise. Institutional responses to corporate enforcement mirrored the apathy shown by the political establishment and society more generally. Corporate non-compliance with the law was widespread, yet prosecutions rarely took place, convictions were rarely achieved, and offenders were subject to very low levels of sanctions. A culture of corporate non-compliance and non-enforcement reigned.
In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them. In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed.
Patrick C. Toomey and Brett Max Kaufman (ACLU National Security Project and NYU School of Law Technology Law & Policy Clinic) has posted The Notice Paradox: Secret Surveillance, Criminal Defendants & the Right to Notice (Santa Clara Law Review, Vol. 54, 2014) on SSRN. Here is the abstract:
In this Article, we seek to explain the legal and factual components of the Notice Paradox. The Notice Paradox exists because at precisely the moment that novel and legally untested surveillance techniques are multiplying, one of the most essential restraints on illegal searches — notice — is fast disappearing. Though the Paradox affects, in principle, all Americans, this Article explores those effects chiefly with respect to criminal defendants. In Part II, we recount the historical and legal roots of the notice requirement, and we explain its practical significance in the context of government searches and criminal prosecutions. Part III, a survey of recent disclosures about secret uses of electronic surveillance and the government’s manipulation of the notice right, illustrates the significant shift away from notice as a given, as well as some of the associated dangers of that trend. We conclude in Part IV by suggesting several legal and policy recommendations that would help mitigate the costs of faltering notice to individuals and society at large.
Thursday, January 29, 2015
Eduardo Rivera-López (Universidad Torcuato Di Tella) has posted The Moral Murderer. A (More) Effective Counterexample to Consequentialism (Ratio. An International Journal of Analytic Philosophy, 2012) on SSRN. Here is the abstract:
My aim in this paper is to provide an effective counterexample to consequentialism. I assume that traditional counterexamples, such as Transplant (A doctor should kill one person and transplant her organs to five terminal patients, thereby saving their lives) and Judge (A judge should sentence to death an innocent person if he knows that an outraged mob will otherwise kill many innocent persons), are not effective, for two reasons: first, they make unrealistic assumptions and, second, they do not pass the rule consequentialist institutional test. My example (The Moral Murderer), instead, assumes a realistic empirical framework and the relevant action does not undermine basic social institutions. On the contrary, it reinforces them. In The Moral Murderer, Tom (an adult male) is morally allowed to murder a person (preferably a woman) in order to be punished to death.
Caroline Davidson (Willamette University - College of Law) has posted State Constitutions and the Humane Treatment of Arrestees and Pretrial Detainees (19 Berk. J. Crim. L. 1 (2014)) on SSRN. Here is the abstract:
With the United States Supreme Court’s repeated moves to roll back federal constitutional protections for people arrested or in jail, the time has come to reconsider the potential of state constitutions to promote protection of civil liberties of these groups. This Article explores the oft-overlooked world of state constitutional protections for arrestees and pretrial detainees, with a focus on provisions guaranteeing humane treatment, and evaluates strategies for encouraging interpretation of and, ultimately, compliance with these constitutional guarantees.
Adriane Kayoko Peralta has posted An Interrogation and Response to the Predominate Framing of Truancy (62 UCLA L. Rev. Disc. 42 (2014)) on SSRN. Here is the abstract:
This Article explores the predominate framing of student truancy and uncovers the problems associated with the prevailing framework. California Attorney General Kamala Harris frames the issue as an economic crisis in which truant students and their parents are to blame. This framing of truancy has led to punishment-based solutions that not only exacerbate the school to prison pipeline, but also are ineffective in solving truancy. Punishment for truancy disproportionately affects poor students of color. Thus, the framing of truancy needs to shift towards one that acknowledges race and poverty in order to develop productive solutions.
Lyle Denniston has this report at ScotusBlog. In part:
Without a noted dissent, the Supreme Court on Wednesday afternoon delayed the scheduled execution of three Oklahoma death-row inmates, whose case the Justices will hear in late April. The executions were put on hold, but only so far as the state would use a specific drug in the procedure — the sedative midazolam.
Wednesday, January 28, 2015
Megan Annitto (Charlotte School of Law) has posted Graham's Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of Graham and Miller (Brooklyn Law Review , Vol. 80, No. 1, 2014) on SSRN. Here is the abstract:
In Graham v. Florida and Miller v. Alabama, the Supreme Court imposed limits on the use of life sentences for juveniles. The decisions require states and the federal government to craft new procedures when and if courts levy life and lengthy sentences upon juveniles. But the Court’s decisions are not self-actualizing and there is little within them that creates a bright line about the substance or procedures states should follow. This article focuses on three of the questions that states face in the implementation of the Court’s decisions. First, who is the best gatekeeper for the release of these offenders on the back end of sentencing — the judiciary, parole boards, or something new? Second, what procedural and substantive guidance should states provide for these chosen gatekeepers? And, finally, what role will modern risk assessment tools play in this decision making?
Sarah A Ricciardi has posted Do You Know Why I Stopped You? The Future of Traffic Stops in a Post-Heien World (Connecticut Law Review, Fall 2015, Forthcoming) on SSRN. Here is the abstract:
This Comment analyzes the Supreme Court's recent decision in Heien v. North Carolina in light of the current events in Ferguson, MO and Staten Island, NY. It suggests that the expansion of police discretion with respect to traffic stops will disproportionately affect minorities and thereby further add to the civil unrest due to racial disparity in treatment by the police.
Ashley D. Brosius has posted An Iowa Law in Need of Imminent Change: Redefining the Temporal Proximity of Force to Account for Victims of Intimate Partner Violence Who Kill in Non-Confrontational Self-Defense (Iowa Law Review, Vol. 100, No. 2, 2015) on SSRN. Here is the abstract:
In 2010, in response to gendered sentencing discrepancies resulting from the “immediacy” requirement in the provocation partial defense, the United Kingdom enacted the Coroners and Justice Act, which abolished provocation and replaced it with the defense of “loss of self-control.” Under the new law, women who kill their abuser in non-confrontational situations no longer have to defend themselves “immediately” at the very instant an abuser threatens their life. Under Iowa self-defense law, which operates as a complete defense, an abuse victim must show she is in “imminent” danger of death or serious injury when she defends herself. Iowa courts interpret “imminent” to mean “immediate” as in the United Kingdom. Women who use force against their assailant in non-confrontational settings cannot show temporal proximity of force, which leads to harsher sentences than men receive for killing a partner. After reflecting on the history, legal treatment, and pervasiveness of intimate partner violence in the United States and Iowa, this Note analogizes to the United Kingdom to argue that Iowa should redefine the imminence requirement in its statute.
John H. Blume , Sheri Lynn Johnson , Paul Marcus and Emily C. Paavola (Cornell Law School , Cornell Law School , William & Mary Law School and Cornell Law School) have posted A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar (William & Mary Bill of Rights, Vol. 23, 2014) on SSRN. Here is the abstract:
The article, with three co-authors, examines empirically the capital cases decided by the lower courts since the United States Supreme Court created the categorical ban against the execution of persons with intellectual disability twelve years ago in the Atkins decision.
Tuesday, January 27, 2015
Paul Marcus (William & Mary Law School) has posted Does Atkins Make A Difference in Non-Capital Cases? Should It? (William & Mary Bill of Rights, Vol. 23, 2014) on SSRN. Here is the abstract:
The holding in Atkins v. Virginia is clear. The execution of mentally retarded defendants, those people with intellectual disabilities, is unconstitutional. One other feature of the Atkins decision is also certain; the reason the 8th Amendment is violated by the use of the death penalty with such convicted defendants. That is because defendants with intellectual disabilities are to be viewed as less culpable than other defendants.
In this article, I look at the limited impact the Atkins rationale and its holding have had in non-capital cases. I examine three areas: confessions (both voluntariness determinations, and understanding of Miranda warnings), the ability of those with intellectual disabilities to assist their lawyers in making plea decisions or in creating a defense to criminal prosecutions, and sentencing. These three areas are of genuine significance because they focus on an accused’s understanding of the process and also the degree of culpability for the offense.
The government’s response to the financial crisis was dramatic, enormous, and unprecedented, and nothing about it has been overseen by the courts. In our federal system, the courts are supposed to put the policies of presidents and congresses to the test of judicial review, to evaluate decisions by the executive to sanction individuals for wrongdoing, and to resolve disputes between private parties. But during and after the financial crisis, there has been almost none of that sort of judicial review of government, few sanctions on the private sector for conduct during the crisis, especially criminal ones, for the courts to scrutinize, and a private dispute process that, while increasingly active, has resulted in settlements, rather than trials or verdicts. This Article tells the story of the marginal role of courts in the financial crisis, evaluates the costs of that role, and provides suggestions to ensure a real, if not all-encompassing, judicial role during the next economic emergency.
David McCord and Mark W. Bennett (Drake University Law School and Independent) have posted The Proposed Capital Penalty Phase Rules of Evidence (Cardozo Law Review, Vol. 36, p. 417, 2014) on SSRN. Here is the abstract:
No person or organization has ever proposed model rules of evidence for the unique penalty phase of a death penalty trial. Now a law professor skilled in the scholarship of both death penalty jurisprudence and evidence, and a federal judge with extensive federal death penalty experience, do just that. This work transcends the hodge-podge of evidentiary approaches taken by the various state jurisdictions and federal law. The result is the Proposed CAPITAL PENALTY PHASE RULES OF EVIDENCE — clear and uniform rules to govern the wide-ranging evidentiary issues that arise in the penalty phase of capital trials. Death penalty trials, long criticized for the arbitrariness of their results, will greatly benefit from these Rules.
Sonja B. Starr (University of Michigan Law School) has posted Explaining Race Gaps in Policing: Normative and Empirical Challenges on SSRN. Here is the abstract:
This piece explores the many kinds of quantitative claims that researchers and commentators regularly make about race and policing. Everyone agrees that there are enormous racial gaps in U.S. rates of stops, arrests, searches, and use of force. But there are dramatically conflicting claims as to why. Policing is hard to study, but the problem isn’t just the data shortcomings with which the literature has long struggled. It’s confusion about what questions we should be asking. Different kinds of numerical comparisons and research designs often imply sharply differing conceptions of what racial equality in policing means. These normative premises often go unstated, such that readers may easily miss these differences. The overarching objective of this Article is to highlight the connection between the normative and the empirical. I identify plausible conceptions of racial equality in policing and assess which empirical methods can best test those conceptions.
Monday, January 26, 2015
Aya Gruber (University of Colorado Law School) has posted Race to Incarcerate: Punitive Impulse and the Bid to Repeal Stand Your Ground (University of Miami Law Review, Vol. 68, No. 961, 2014) on SSRN. Here is the abstract:
Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon’s death was not in vain. However, when the story first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida’s self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially discriminatory nature of police and prosecutorial discretion. After nearly two years of talking about the case, however, concerns over Florida state actors’ racially biased application of the law have virtually evaporated in the face of the throng of arguments that stand your ground is inherently poor criminal policy. The nature of the Zimmerman conversation is now about how stand your ground has exonerated thugs, drug dealers, and vicious killers all over the racial spectrum and the law’s correlation with increased homicides. This article explores why many progressives decided to focus their advocacy efforts away from clear issues of inequality and toward legal reform to make it more difficult for future defendants to plead self-defense. It maintains that at least part of the explanation is a punitive impulse deeply entrenched in American psyche that leads even left-leaning racial justice proponents occasionally to hastily embrace proposals that augment the very police and prosecutorial power they otherwise criticize. It accordingly cautions progressives to be wary of remedying discrimination through programs that bypass nonpunitive social, cultural and economic restructurings in favor of selective carceral management of the few private (non-police) individuals that can be characterized as transgressing the social order.
Ian Ayres and Barry J. Nalebuff (Yale University - Yale Law School and Yale University - Yale School of Management) have posted The Rule of Probabilities: A Practical Approach for Applying Bayes' Rule to the Analysis of DNA Evidence (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Bayes’ rule is not being used to guide jury decision making in the vast majority of criminal cases introducing evidence of DNA testing. Instead of telling juries the “source probability,” the probability that the individual whose DNA matches was the source of the forensic evidence found at the crime scene, experts only present pieces of the puzzle. They provide the probability that a randomly selected innocent person would have a match or the expected number of innocent matches in the database. In some cases, the random match probability will be so low (one in a quadrillion) that the intuitive source probability is practically one hundred percent. But, in other cases, with large database trawls and random match probability at 1 in a million, jurors will have no ability to convert the random match probability or the likelihood ratio based on expected number of matches into relevant data that will help them address the question of guilt. This Article shows that a correct application of Bayes’ rule should lead fact-finders and litigants to focus on the size of two variables that influence the source probability: the probability that a non-source in the DNA database would have an alibi, and the probability that the source of the DNA is included in the database. This Article suggests practical means of estimating these two variables and argues that as a legal matter these parameters as well as the Bayesian posterior source probability are admissible in court.
Lauren Sudeall Lucas (Georgia State University College of Law) has posted Lawyering to the Lowest Common Denominator: Strickland's Potential for Incorporating Underfunded Norms into Legal Doctrine (5 Faulkner Law Review 199 (2014)) on SSRN. Here is the abstract:
This symposium article (written per invitation to serve as Lead Speaker) explores how ineffective assistance of counsel doctrine, by its design, may incorporate and exacerbate the failings of an underfunded indigent defense system. Specifically, it highlights two aspects of the Strickland v. Washington standard for ineffective assistance of counsel: first, its inability to effectively address issues of underfunding through its two-prong test of deficient performance and prejudice; and, second, the way in which its eschewal of specific substantive guidelines for attorney performance in favor of reliance on “prevailing professional norms” may allow legal doctrine to be influenced by anemic, localized practice norms resulting from a lack of resources.
As part of its analysis, this piece surveys Alabama court decisions invoking the “prevailing professional norms” terminology under Strickland to determine the sources on which Alabama courts rely to assess the reasonableness of attorney conduct.
Brian Sites (Barry University - Dwayne O. Andreas School of Law) has posted Rise of the Machines: Machine-Generated Data and the Confrontation Clause (16 Columbia Science & Technology Law Review 36) on SSRN. Here is the abstract:
Donald E., Jr. Wilkes (University of Georgia Law School) has posted The Great Writ Hit: The Curtailment of Habeas Corpus in Georgia Since 1967 (7 John Marshall L.J. 415 (2014)) on SSRN. Here is the abstract:
A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction habeas relief. Moreover, in a dispiriting manifestation of lack of appreciation for Great Writ, five lamentable Georgia Supreme Court decisions, handed down between 1975 and 2012, have severely limited postconviction habeas corpus, both substantively and procedurally.