Sunday, May 31, 2015
|1||590||Ten Seldom Discussed Foreign Corrupt Practices Act Facts that You Need to Know
Southern Illinois University School of Law
Date posted to database: 4 May 2015 [3rd last week]
|2||551||'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment
Dan M. Kahan, David A. Hoffman, Danieli Evans, Neal Devins, Eugene A. Lucci andKatherine Cheng
Yale University - Law School, Temple University - James E. Beasley School of Law, Yale Law School, William & Mary Law School, Government of the State of Ohio - Court of Common Pleas and Cultural Cognition Lab, Yale Law School
Date posted to database: 22 Apr 2015
|3||436||Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law
City University of New York - Baruch College, Zicklin School of Business
Date posted to database: 1 Apr 2015 [4th last week]
|4||397||Washington's War on the Visibly Poor: A Survey of Criminalizing Ordinances & Their Enforcement
Justin Olson, Scott MacDonald and Sara Rankin
Seattle University School of Law, Seattle University School of Law and Seattle University School of Law
Date posted to database: 8 May 2015 [6th last week]
|5||391||Norms of Computer Trespass
Orin S. Kerr
The George Washington University Law School
Date posted to database: 3 May 2015
|6||254||Conflict Assessment: Northern Kenya and Somaliland
Date posted to database: 4 Apr 2015 [7th last week]
|7||204||Brain Science and the Theory of Juvenile Mens Rea
Date posted to database: 8 May 2015 [9th last week]
|8||197||Disparities in Discipline: A Look at School Disciplinary Actions for Utah's American Indian Students
Date posted to database: 23 May 2015 [new to top ten]
|9||191||Database Infamia: Exit from the Sex Offender Registries
Wayne A. Logan
Florida State University - College of Law
Date posted to database: 15 Apr 2015 [8th last week]
|10||174||The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws
Javier Ortiz, Matthew Dick andSara Rankin
Seattle University School of Law, Seattle University School of Law and Seattle University School of Law
Date posted to database: 8 May 2015 [new to top ten]
Saturday, May 30, 2015
Dominique Roe-Sepowitz , Kristine E. Hickle , Jaime Dahlstedt and James Gallagher (Arizona State University (ASU) - ASU School of Social Work , University of Sussex , Arizona State University (ASU) - Sandra Day O'Connor College of Law and City of Phoenix - Phoenix Police Department) have posted Victim or Whore: The Similarities and Differences Between Victim's Experiences of Domestic Violence and Sex Trafficking (24 Human Behav in Soc. Env 883 (2014)) on SSRN. Here is the abstract:
This research review addresses the similarities and differences between domestic violence and sex trafficking victimization. While there is evidence that domestic violence and sex trafficking often co-occur, there is a large disparity in the understanding and interventions utilized by law enforcement as well as the services available for victims of each crime despite the considerable overlap of victimization. This paper explores current research regarding domestic violence and sex trafficking with a focus towards identifying areas of overlap and areas distinct to sex trafficking. Indications of five unique aspects of sex trafficking were found including: 1) exploitation (including economic/financial exploitation), 2) sexual activity outside the primary relationship, 3) victimization by people outside the primary relationship that do not help or assist victims, 4) the participation in a unique subculture: 5) and the experience of identifying with a stigmatized role/label. Currently, services for sex trafficking victims and domestic violence victims are rarely combined except in settings specifically serving sex trafficking victims. The understanding of these differences will allow for more informed enforcement of sex trafficking laws and expansion of service providers for sex trafficking victims.
Patrick Walsh has posted Stepping on (or Over) the Constitution’s Line: Evaluating FISA Section 702 in a World of Changing 'Reasonableness' Under the Fourth Amendment (New York University Journal of Legislation and Public Policy, Forthcoming) on SSRN. Here is the abstract:
The Foreign Intelligence Surveillance Act Section 702 program collects vast amounts of information — some on U.S. citizens located inside the United States — without a judicially authorized search warrant. Over one hundred federal terrorism prosecutions have involved evidence gathered through Section 702 warrantless interceptions. But this program may violate the constitution’s Fourth Amendment prohibition on unreasonable searches and federal courts have signaled that they are capable and willing to rule on the constitutionality of FISA Section 702.
Susan A. Bandes (DePaul University - College of Law) has posted Civil Liberties and the 'Imaginative Sustenance' of Jewish Culture (16 Rutgers Journal of Law and Religion 238 (2015)) on SSRN. Here is the abstract:
This short essay is included in a symposium issue entitled "People of the Book: Judaism's Influence on American Legal Scholarship." It is a meditation on how my background as a Reform Jew growing up in New York City influenced my work as a constitutional lawyer and my scholarship in the fields of criminal procedure and federal jurisdiction. As Irving Howe observed: “The imaginative sustenance that Yiddish culture and the immigrant experience could give to American Jewish writers rarely depended on their awareness or acknowledgement of its presence. Often it took the form of hidden links of attitude and value.” In this essay, I will focus on three of those links of attitude and value. First is the value of dispute and dialectic as a bedrock principle in both the religious and legal realms. Second is an entrenched skepticism about power and a heightened awareness of power imbalances. Third is a respect for settled ritual and process, and how it comes into tension with the substantive goal of justice.
Friday, May 29, 2015
Ashley T. Rubin (Florida State University - School of Criminology and Criminal Justice) has posted A Neo-Institutional Account of Prison Diffusion (Law & Society Review, Vol. 49:2, pp. 365-400, 2015) on SSRN. Here is the abstract:
Interest in legal innovations, particularly in the criminal law realm, often centers on an innovation’s emergence, but not its subsequent diffusion. Typifying this trend, existing accounts of the prison’s historical roots persuasively explain the prison’s "birth" in Jacksonian-Era northern coastal cities, but not its subsequent rapid, widespread, and homogenous diffusion across a culturally, politically, and economically diverse terrain. Instead, this study offers a neo-institutional account of the prison’s diffusion, emphasizing the importance of national, field-level pressures rather than local, contextual factors. This study distinguishes between the prison’s innovation and early adoption, which can be explained by the need to replace earlier proto-prisons, while its subsequent adoption, particularly in the South and frontier states, was driven by the desire to conform to increasingly widespread practices. This study further attributes the isomorphic nature of the diffusion to institutional pressures, including uncertainty surrounding the new technology, pseudo-professional penal reformers and their claims about competing models of confinement, and contingent historical factors that reinforced these institutional pressures. This study illustrates the importance of distinguishing between the motivations that initiate criminal law innovations and the varied reasons behind their diffusion.
Roberta S. Karmel (Brooklyn Law School) has posted The Law on Insider Trading Lacks Needed Definition (Southern Methodist University Law Review, Forthcoming) on SSRN. Here is the abstract:
Insider trading is not defined in the federal securities laws but is interpreted by the courts as a common law crime. This article argues that a statutory definition is needed, particularly in light of a recent Second Circuit case that narrows the breadth of cases recently prosecuted by the Securities and Exchange Commission and Department of Justice.
Federal courts have taken the wrong approach to discussing sentencing error. Circuit court opinions in career offender cases have framed the debate over collateral review of federal sentencing error as a conflict between finality and fairness. This Comment contends that disagreement over the cognizability of such claims is actually a dispute about the nature of the harm in sentencing error. What federal courts are actually asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury.
The Comment draws on an analogy to tort law to argue that sentencing debates are, at their core, about loss of chance.
Jacqueline Hodgson and Edward Cape (University of Warwick - School of Law and University of the West of England (UWE) - Bristol Law School) have posted The Right to Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice (New Journal of European Criminal Law, Vol. 5, Issue 4, 2014) on SSRN. Here is the abstract:
Recent EU Directives provide for a range of procedural protections for suspects and accused persons, going beyond the more broadly articulated standards set out in the European Convention of Human Rights. These reforms are to be welcomed, but their implementation poses a range of challenges for Member States. Drawing on recent empirical research, this article focuses on one measure, the right to legal assistance during police custody. It discusses the range of complex and often inter-related factors that operate to help or to hinder the process of ensuring that the right is ‘practical and effective’ and not merely ‘theoretical and illusory’. Member States do not share a common procedural tradition and alongside ensuring sufficient financial and human resources, effective implementation will require shifts in the legal and occupational cultures of police, prosecutors and the criminal bar.
Samuel R. Bagenstos (University of Michigan Law School) has posted Who is Responsible for the Stealth Assault on Civil Rights? (Michigan Law Review, Vol. 114, 2016 Forthcoming) on SSRN. Here is the abstract:
Although every practicing lawyer intuitively knows that a legal right or obligation is worth nothing more than the remedy for its violation, journalists and the general public too rarely focus on the important remedial questions addressed by the courts. That is a shame. As Sarah Staszak shows in her recent book, No Day in Court, the Supreme Court has repeatedly closed off avenues for enforcing civil rights in recent years. But rather than attend to these incredibly consequential remedial decisions, journalists — and even many scholars — have generally focused on the Court’s substantive decisions regarding the scope of civil and constitutional rights. A number of those substantive decisions — notably including cases involving gay rights, capital punishment, and prison conditions — have reached politically liberal results. But to look at those decisions and conclude that this is a moderate Supreme Court is to miss the more fundamental point that, whatever the scope of the substantive rights it is willing to recognize, the Court’s remedial decisions have made it more difficult to vindicate those rights. It is those remedial decisions, and not the Court’s rulings on substantive rights, that have made it difficult, for example, to challenge excessive uses of force by law enforcement.
Thursday, May 28, 2015
Catherine E White has posted Comment: 'I Did Not Hurt Him...This Is a Nightmare': The Introduction of False, But Not Fabricated, Forensic Science in Police Interrogations (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:
Junk sciences, such as bitemark analysis, fire science, shaken baby syndrome, and handwriting analysis, have been deceiving juries for years. Courts and the scientific community once regarded these forensic sciences as reliable evidence, but they have since been proven unreliable. Almost fifty percent of the cases overturned by DNA testing involve junk sciences. This Comment focuses on a subset of those wrongful convictions: cases in which the junk science deceived not only the jury but the defendant as well.
When the police discuss forensic evidence with a suspect during an interrogation, the suspect sometimes confesses to committing the crime in a manner consistent with the forensic evidence. If the court convicts the suspect and the scientific community later determines that the forensic evidence is unreliable, retrial is necessary. The unreliability of the junk science undermines confidence in the confession. This Comment surveys the empirical studies on false confessions and argues that junk science is a type of false evidence that multiple studies have demonstrated increases the risk of a false confession. In fact, junk science may be even more likely than other types of false evidence to spur a false confession.
Raul Caruso (Catholic University of the Sacred Heart of Milan) has posted What is the Relationship between Unemployment and Rape? Evidence from a Panel of European Regions on SSRN. Here is the abstract:
This paper empirically analyzes the relationship between unemployment and rape in a panel of European regions. Results show that rape and unemployment are positively associated. Results are robust using alternative dependent variables, namely (i) the count of rape; (ii) the rape rate per 100,000 people. When applying gender-specific measures, only total female unemployment appears to explain the positive association. Yet, the main findings are confirmed when using youth unemployment. Interestingly, only male youth unemployment seems to explain the positive association between rape and youth unemployment. Among control variables, interestingly, education is positively associated with rape. The reasonable interpretation is that education does not increase rape in itself but rather ‘reported rape’. As expected, measures of future economic opportunities are negatively associated with emergence of rape.
Elaine Fahey (City University London - City Law School) has posted Transatlantic Cooperation in Criminal Law (M. Bergström, V. Mitsilegas and T. Konstadinides (eds) Research Handbook on EU Criminal law (Edward Elgar, 2015)) on SSRN. Here is the abstract:
The chapter purports to offer a ‘birds-eye’ view of key contemporary instruments and mechanisms in the area of Transatlantic Cooperation in Criminal Law. It begins with a brief overview of understanding contemporary Transatlantic Cooperation through Law and then moves to outline key agreements between the EU and US in Extradition and Mutual Legal Assistance, including Death penalty cooperation. Thereafter, there is a brief consideration of Agreements between Europol and the US, and then the chapter reflects upon the latest area of transatlantic cooperation in Criminal law, namely EU Cybercrime and Cyber Security, followed by concluding reflections.
Ronald Weitzer (George Washington University) has posted Researching Prostitution and Sex Trafficking Comparatively (SEXUALITY RESEARCH & SOCIAL POLICY, v. 12 (2015)) on SSRN. Here is the abstract:
This article examines different types of comparative research designs as applied to either prostitution or sex trafficking. I first present several comparative approaches that are found to be deeply flawed either because of the problematic assumptions of the analysts or because the data provided are insufficient to support the conclusions drawn. I then review research designs that compare two to four cases in depth and have the potential to yield stronger evidence-based findings and richer theoretical insights. The article concludes by discussing a set of methodological issues that face researchers who conduct comparative research on sex work.
Wednesday, May 27, 2015
Benjamin L. Berger (York University - Osgoode Hall Law School) has posted Sentencing and the Salience of Pain and Hope (Supreme Court Law Review (2d), Forthcoming, in Dwight Newman & Malcolm Thorburn, eds, The Dignity of Law: The Legacy of Justice Louis LeBel (Markham, ON: LexisNexis, 2015 Forthcoming)) on SSRN. Here is the abstract:
What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the Supreme Court of Canada has nudged the law in precisely this direction, calling on judges to think about sentencing in ways better attuned to the lived experience of punishment. In judgments concerning police misconduct, collateral consequences of a sentence, and delayed parole, the Court has recognized the salience of pain and hope to the task of sentencing, firmly establishing that proportionality – the guiding measure of a fit sentence – is an indelibly individualized concept that must be calibrated to the real effects of the criminal process and proposed sentence on the life lived by the offender. With this, we can begin to imagine new possibilities in our sentencing practices and must conceive of the essential legal and ethical task of the sentencing judge in new terms: an imaginative engagement with the lives of those that they punish.
David Enoch and Talia Fisher (Hebrew University - The Philosophy Department and the Law School and Tel Aviv University - Buchmann Faculty of Law) has posted Sense and 'Sensitivity': Epistemic and Instrumental Approaches to Statistical Evidence (Stanford Law Review, Vol. 67, No. 557, 2015) on SSRN. Here is the abstract:
Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars often view statistical evidence with suspicion, treating it as inadmissible even when it is probabilistically equivalent to individualized evidence. But attempts to vindicate the suspicion or to dismantle it altogether have been largely unsuccessful. The aim of this Article is to provide a comprehensive answer to the statistical evidence debate. The Article offers a novel explanation for the suspicion toward statistical evidence, pointing to the epistemic inferiority of statistical evidence due to its lack of “Sensitivity” — namely, the requirement that a belief be counterfactually sensitive to the truth as a necessary condition of “Knowledge.” After exposing the epistemic distinctions between statistical and individualized evidence, the Article turns to examining their implications for the legal arena.
Jules Epstein (Widener University - School of Law) has posted The NAS and the Courts: A Three-Year Perspective (Scientific Evidence Review: Admissibility and Use of Expert Evidence in the Courtroom, monograph no. 9) on SSRN. Here is the abstract:
The 2009 report Strengthening Forensic Science, A Path Foward, provided an intensely critical assessment of forensic evidence as used in courts across the United States. The report concluded that, with the exception of DNA, no forensic discipline had been sufficiently validated to permit "individualization" testimony, a claim that an item of evidence came from one source to the exclusion of all other possible contributors. The report also castigated the legal community, finding that it had been ineffective in recognizing the limits of such evidence and addressing these deficiencies. This chapter assesses the impact of that report, in the courtroom, in the subsequent four years. It finds that, with rare exception, courts continue to admit such proof categorically and uncritically.
Tuesday, May 26, 2015
Issue summaries are from ScotusBlog, which also links to papers:
- Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.
- Lockhart v. United States: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.
Joel S. Johnson has posted Benefits of Error: A Dynamic Defense of the Blackstone Principle in Criminal Law (Virginia Law Review, Vol. 102, 2016, Forthcoming) on SSRN. Here is the abstract:
William Blackstone wrote, "[B]etter that ten guilty persons escape, than that one innocent suffer." The principle underlying this maxim — that false acquittals are preferred to false convictions — is central to our criminal justice system. Indeed, it is the basis for many procedural rules, including the beyond-a-reasonable-doubt standard of proof. In recent years scholars have offered consequentialist justifications and criticisms for the so-called Blackstone principle, but both sides of the argument have operated from a static perspective, which holds too many of the variables of the criminal justice system constant when weighing two very different types of harm and assumes that the Blackstone principle benefits defendants. Recently, however, a new strand of scholarship has emerged. Daniel Epps has offered a first attempt at comprehensive consequentialist analysis of the Blackstone principle from a so-called "dynamic" perspective.
Vida B. Johnson (Georgetown University Law Center) has posted Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System (Seton Hall Law Review, Vol. 45, No. 2, 2015) on SSRN. Here is the abstract:
The American criminal justice system is built on three bedrock principles: the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt. These ideals, however, are frequently ignored by jurors. Social science research has shown that jurors routinely believe that a defendant must prove his innocence, and that the mere fact that the defendant is standing trial is proof of guilt. Jurors persist in these beliefs despite proper instructions on the law.
Despite the acknowledged centrality of these legal ideals, trial courts in many jurisdictions, routinely prevent defense attorneys from questioning prospective jurors on these fundamental legal issues based on a mistaken view that jurors will follow the given instructions.