Thursday, March 31, 2016
Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the U.S. Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases.
The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not even attempt to distinguish humane execution protocols from dangerous ones. Many states, including Oklahoma, have repeatedly shown that they cannot be trusted to implement lethal injection procedures carefully. The Court’s deference turned a blind eye to this history and upheld a manifestly dangerous execution procedure. In so doing, the Court abdicated its constitutional responsibility to safeguard individual rights. Regardless of one’s views on capital punishment, Glossip v. Gross’s reflexive deference determinations collectively amount to gross error.
Adam Ross Pearlman and Erick S. Lee (Government of the United States of America - Department of Defense and University of California, San Francisco) have posted National Security, Narcissism, Voyeurism, and Kyllo: How Intelligence Programs and Social Norms are Affecting the Fourth Amendment (2 Tex. A&M L. Rev. 719 (2015)) on SSRN. Here is the abstract:
This article begins by tracing the development of Fourth Amendment jurisprudence in light of technological advancements from when the Supreme Court first addressed wiretapping in Olmstead in 1928, all the way through Kyllo, decided in 2001, mere months before the 9/11 terrorist attacks. We bifurcate that criminal law history from the national security law developments that led to the enactment of the Foreign Intelligence Surveillance Act, and the "wall" between law enforcement and intelligence organs of the federal government.
Since the 9/11 attacks, however, traditional law enforcement and national security investigations (and investigatory methods) are more closely linked than when the key Supreme Court cases were decided. Further, surveillance and data collection capabilities are more widely reported and openly discussed than ever before. And, despite those two facts, the ways in which society has been employing technology in everyday use means the formerly private details of peoples' lives are more exposed and vulnerable than ever.
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted The 'Smart' Fourth Amendment (Cornell Law Review, Vol. 102, 2016, Forthcoming) on SSRN. Here is the abstract:
“Smart” devices radiate data, detailing a continuous, intimate, and revealing pattern of daily life. Billions of sensors will soon collect data from smartphones, smart homes, smart cars, medical devices and an evolving assortment of consumer and commercial products. But, what are these data trails to the Fourth Amendment? Does data emanating from devices on or about our bodies, houses, things, and digital effects fall within the Fourth Amendment’s protection of “persons, homes, papers, or effects”? Does interception of this information violate a “reasonable expectation of privacy?”
The “Internet of Things” and the growing proliferation of smart devices create new opportunities for police investigation. If this web of sensor surveillance falls outside of the Fourth Amendment, then warrantless collection and tracking of this smart data presents no constitutional concern. If these data trails deserve constitutional protection, a new theory of the Fourth Amendment must be developed.
Sara A McDermott has posted Calibrating the Eighth Amendment: Graham, Miller, and the Right to Mental Healthcare in Juvenile Prison (UCLA Law Review, Vol. 63, No. 712, 2016) on SSRN. Here is the abstract:
Young people locked up in juvenile prisons have an enormous need for mental healthcare, one which juvenile prisons have consistently found themselves unable to meet. As a result, many incarcerated young people end up being denied the care they deserve. Yet for years, courts have implemented a confused, haphazard doctrine to evaluate youth right to mental healthcare claims - likely because the quasi-criminal nature of the system frustrates any more straightforward application. The constitutional tests that courts apply vary widely between jurisdictions, with some courts deriving tests from the Fourteenth Amendment, others from the Eighth, and many fashioning a standard somewhere in between. This has not only led to unpredictability between cases, but also led courts to express a troubling indifference to the unique needs and vulnerabilities of mentally ill youth.
Wednesday, March 30, 2016
Justice Breyer announced the judgment of the Court in Luis v. United States in an opinion joined by the Chief Justice and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment. Justice Kennedy filed a dissenting opinion joined by Justice Alito. Justice Kagan filed a dissenting opinion.
Jesse J. Norris (State University of New York at Fredonia) has posted Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters (54 Harvard Journal on Legislation __ (Forthcoming)) on SSRN. Here is the abstract:
After white supremacist Dylann Roof killed nine African-Americans at a Charleston, South Carolina church, authorities declined to refer to the attack as terrorism. Many objected to the government’s apparent double standards in its treatment of Muslim versus non-Muslim extremists and called on the government to treat the massacre as terrorism. Yet the government has neither charged him with a terrorist offense nor labelled the attack as terrorism.
This Article argues that although the government was unable to charge him with terrorist crimes because of the lack of applicable statutes, the Charleston Massacre still qualifies as terrorism under federal law. Roof’s attack clearly falls under the government’s prevailing definition of domestic terrorism. It also qualifies for a terrorism sentencing enhancement, or at least an upward departure from the sentencing guidelines, as well as for the terrorism aggravating factor considered by juries in deciding whether to impose the death penalty.
Julia Alanen has posted Custom or Crime? Catalysts and Consequences of Forced Marriage (29 American Journal of Family Law 227 (Winter 2016)) on SSRN. Here is the abstract:
This article is the first in a four-part series about forced marriage in the USA. Part I aims to define forced marriage and distinguish it from arranged marriage, inform the reader about who could be a forced-marriage victim or perpetrator, and explore the catalysts and consequences of harmful marriage practices. Part II evaluates existing U.S. legal remedies and resources for combating forced marriage. Part III explores the fierce, ongoing debate over whether forced marriage laws should be civil or criminal in nature. And, Part IV sets forth recommendations for a comprehensive national response to protect and empower U.S.-based victims and survivors seeking to avoid or flee forced marriages. This piece includes excerpts from Alanen’s earlier article, Shattering the Silence Surrounding Forced and Early Marriage in the United States, Children's Legal Rights Journal, Vol. 32, No. 2 (Summer 2012).
David A. Harris (University of Pittsburgh - School of Law) has posted The Dangers of Racialized Perceptions and Thinking by Law Enforcement (In DEADLY INJUSTICE: TRAYVON MARTIN, RACE, AND THE CRIMINAL JUSTICE SYSTEM, Devon Johnson, Patricia Y. Warren, and Amy Farrell, eds., New York University Press, 2015) on SSRN. Here is the abstract:
The death of seventeen-year-old Trayvon Martin, shot by George Zimmerman in a gated Florida community in which Martin's father lived, focused national attention on Florida's Stand Your Ground (SYG) law. That law allows a person to use deadly force in any public place in which the person using force is lawfully present when he or she believes that deadly force is necessary to defend against a threat of death or serious bodily injury, with no retreat necessary. Florida's SYG law had already achieved considerable notoriety before Zimmerman pulled the trigger. But the death of Martin — a young African American man — at the hands of Zimmerman brought out racialized perceptions and reasoning at every step. Public debate centered on the question of racial profiling, and whether Zimmerman had perceived Martin as more threatening than he would have if Martin were a white youth. But largely unnoticed in this discussion was the question of how implicit racial perceptions and biases may have affected not just the actions of Zimmerman, but also the actions of law enforcement. The trial that followed resulted in the acquittal of Zimmerman, but it left unresolved the questions about racialized perceptions and bias that this chapter explores.
Lucian E. Dervan , Richard A. Leo , Meghan J. Ryan , Valena Elizabeth Beety , Gregory M. Gilchristand William W. Berry III (Southern Illinois University School of Law , University of San Francisco - School of Law , Southern Methodist University - Dedman School of Law , West Virginia University - College of Law , University of Toledo College of Law and University of Mississippi School of Law) have posted Voices on Innocence (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:
In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless. As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take us in the future.
This article is a collection of short essays from some of those in attendance - essays upon which we might reflect as we continue to consider the varying sides and differing answers to the issue of innocence. Through these diverse and innovative essays, the reader is able to glimpse the larger innocence discussion that occurred in the summer of 2015. As was the case at the roundtable event, the ideas expressed in these pages begins a journey into an issue with many faces and many paths forward for discussion, research, and reform.
Tuesday, March 29, 2016
Ingeborg Puppe and Richard W. Wright (University of Bonn - Department of Law and Illinois Institute of Technology - Chicago-Kent College of Law) have posted Causation in the Law: Philosophy, Doctrine and Practice (Forthcoming in The Common Core of European Private Law: Causation (Marta Infantino and Eleni Zervogianni eds. Cambridge Univ. Press, 2016)) on SSRN. Here is the abstract:
Causation plays an essential role in attributions of legal responsibility. However, considerable confusion has been generated by the use of causal language to refer not merely to causation in its basic (actual/factual/natural) sense, which refers to the operation of the laws of nature, but also to the quite different normative issue of appropriate legal responsibility. To reduce such confusion, we argue that causal language should be used in the law to refer solely to causation in its basic sense.
While it is often said that the law need not and should not concern itself with philosophical analyses of causation, we argue that a failure to take into account rigorous philosophical analysis of causation in its basic sense and to distinguish it from the normative issue of legal responsibility has been a source of major confusion in the law. After summarizing the relevant modern philosophical analyses of causation, we criticize the strong necessity (sine qua non, 'but for') criterion in its counterfactual form and as a supposed exclusive (factual or counterfactual) test of causation, as well as primitivist "we know it when we see it" accounts. We argue, instead, for the need to employ the comprehensive, factual, weak-necessity/strong-sufficiency criterion, which is based on the "covering law" account elaborated by John Stuart Mill and which has been developed in the modern legal literature as the "NESS" (necessary element of a sufficient set) criterion.
Jenia Iontcheva Turner and Allison D. Redlich (Southern Methodist University - Dedman School of Law and State University of New York (SUNY) - School of Criminal Justice) have posted Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison (Washington and Lee Law Review, Vol. 73, 2016) on SSRN. Here is the abstract:
Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both models are debated, surprisingly little is known about the models’ real-world operation.
In this Article, we report the results of an original empirical study in which we surveyed practicing prosecutors and criminal defense attorneys about their pre-plea discovery practices. We surveyed attorneys from Virginia and North Carolina, two adjacent states, which are demographically and geographically similar, but have notably different discovery rules. North Carolina mandates open-file discovery early in the criminal process. By contrast, Virginia protects certain critical documents, such as witness statements and police reports, from discovery.
Matthew J. Tokson (Northern Kentucky University - Salmon P. Chase College of Law) has posted Knowledge and Fourth Amendment Privacy (Northwestern University Law Review, Vol. 111, Forthcoming) on SSRN. Here is the abstract:
This Article examines the central role that knowledge plays in determining the Fourth Amendment’s scope. What people know about surveillance practices or new technologies often shapes the “reasonable expectations of privacy” that define the Fourth Amendment’s boundaries. Courts rely on assessments of knowledge in a wide variety of Fourth Amendment contexts, from early decisions dealing with automobile searches to recent cases involving advanced information technologies. Yet the analysis of knowledge in Fourth Amendment law is rarely if ever studied on its own.
This Article fills that gap, identifying the characteristics of Fourth Amendment knowledge and discussing its benefits and risks. It finds, for instance, that courts typically look to societal knowledge rather than individual knowledge, allowing them to establish broad precedents to govern police behavior.
Constance B. Backhouse (University of Ottawa - Common Law Section) has posted An Introduction to David Wexler, the Person Behind Therapeutic Jurisprudence (1 International Journal of Therapeutic Jurisprudence, 2016, Forthcoming) on SSRN. Here is the abstract:
The author is a legal historian and writer of biographies who, in this short essay, has turned her attention to the work of one legal scholar, David B. Wexler, and his role in the development of the interdisciplinary field of therapeutic jurisprudence (TJ). The essay traces TJ's roots back to Wexler's undergraduate and law school education, but especially notes its emergence from his early academic work at the University of Arizona in mental health law. It pays close attention to Wexler's academic partnership with the late University of Miami law professor Bruce Winick , a close friend and academic partner, and describes how Wexler and Winick nourished the field through their close contact with mental health law professors and then with interdisciplinary and international scholars, judges, and practitioners. The essay tries to capture the richness and breadth of TJ and to bring it to life through an examination of various stages of Wexler's academic life, both in Arizona and now in Puerto Rico.
Stavros Gadinis and Colby Mangels (University of California, Berkeley - School of Law and University of California, Berkeley - School of Law) have posted Collaborative Gatekeepers (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud. Yet, as long as gatekeepers maintain deniability, they can accommodate dubious client requests. Instead, anti-money laundering laws require gatekeepers to report to regulators suspicions of misconduct, even without clear proof of fraud. Because suspicions arise early in the gatekeeper-client relationship, conflicts of interest are not likely to be as strong. Moreover, the task of identifying suspicious cases can be more readily outsourced to compliance departments, lessening dependence on front-line employees whose future might be tied to specific clients. Finally, suspicions may arise even in gatekeepers who only have partial access to clients’ transactions, and thus cannot come to full knowledge of the fraud.
Inspired by the collaborative relationship between gatekeepers and enforcement authorities in anti-money laundering, we develop a theoretical framework that explains why this approach could operate as a general template for financial regulation. We then investigate the implementation of the collaborative model in practice. Starting from anti-money laundering laws’ history, we present new evidence from recently released archival materials to illustrate that, rather than fighting proposals for expanding their regulatory obligations, private industry embraced them. Turning to the present, we discuss how the collaborative model has reshaped banking oversight in money laundering: it has leveraged the power of big data, encouraged the creation of dedicated compliance departments, and spearheaded one of the biggest inter-agency collaborations in the U.S. Finally, we discuss how the collaborative model could work in the future in two other areas of financial activity: broker-dealer regulation and equity issuance.
In recent years, video recordings of police violence have upended the traditional narrative of police heroism. The videos have led to discussions of police accountability, and even some charges and indictments. Yet the controversies surrounding these incidents have also served to highlight the strength of the traditional narrative. In this essay I explore how the police narrative is told in appellate opinions. To show the strength of the traditional police narrative, I first discuss the prevailing cultural story of the dedicated police officer, as depicted in popular media. Next, I examine how police narratives are conveyed in appellate opinions, through use of police language, including “copspeak,” as well as narrative devices such as point of view, emphasis, and selective detail. Finally I discuss examples of counter-narratives in court opinions. These counter-narratives may tell the story from the perspective of the people encountering police, thereby humanizing them for the reader. In rare cases, the counter-narrative includes context that frames the action in a very different light than the traditional police narrative. Such context might include what citizens know about police behavior and police brutality. We are accustomed to reading what police know about the people they encounter (that they are patrolling a “high-crime” area, for example) but we rarely read that citizens are aware that there is a problem with violent police. My conclusion is not that all police narratives are suspect, but that judicial writers need to be aware of how they tell the story of a police-citizen encounter, recognizing that the story is a kind of argument for the court’s ultimate conclusion.
Murat C. Mungan (Florida State University - College of Law) has posted A Generalized Model for Reputational Sanctions and the (Ir)Relevance of the Interactions between Legal and Reputational Sanctions (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
Reputational sanctions and stigmatization costs share many things in common. In particular, wage reductions in the labor market caused by stigmatization (Rasmusen (1996)), and profit reductions in commercial markets caused by reputational losses due to a firm's previous wrong-doings (Iacobucci (2014)) share many similarities. In this article, I construct a model in which Rasmusen (1996) and Iacobucci (2014) emerge as special cases. I use this model to show that increasing the legal sanction (or the probability of detection) cannot cause a reduction in reputational losses that off-sets the increase in expected total sanction in a stable equilibrium. This clarifies ambiguities in the previous literature, and implies that, absent further considerations, deterrence is enhanced by an increase in legal sanctions and/or the probability of detection. Thus, standard Beckerian dynamics are preserved even when reputational sanctions interact with formal sanctions.
Monday, March 28, 2016
Michael D. Makowsky , Thomas Stratmann and Alexander T. Tabarrok (Clemson University - John E. Walker Department of Economics , George Mason University - Buchanan Center Political Economy and George Mason University - Department of Economics) have posted To Serve and Collect: The Fiscal and Racial Determinants of Law Enforcement on SSRN. Here is the abstract:
We examine the fiscal determinants of arrest rates for violent and non-violent crimes across the United States between 2002 and 2012. We find that drug arrest rates for African-Americans increase with local government deficits where state tax and expenditure limitations (TELs) allow the retention of revenues generated by arrests. We find similar effects of fiscal distress on both black and white drug arrests, as well as an increase in black DUI arrests, in a separate analysis of Colorado where municipalities have the option to exempt themselves from the nation’s strictest TELs via general referendum. Our findings support a revenue-driven model of law enforcement.
This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings. I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.
Marc O. DeGirolami (St. John's University - School of Law) has posted On Expressivism and Retributivism in 'The Mighty and the Almighty' (Journal of Analytic Theology (Forthcoming)) on SSRN. Here is the abstract:
This short comment explores Nicholas Wolterstorff's claims about expressivism and retributivism as justifications for the state's punishment of criminal offenders in his book, "The Mighty and the Almighty." It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.
Somewhat suddenly, the last two years have seen the once-impossible idea of reforming federal marijuana law become seemingly inevitable. After spending more than a decade unsuccessfully trying to block state medical marijuana laws, the federal government decided in 2013 to let Colorado and Washington implement marijuana legalization laws without a fight. With marijuana public support for legalization only continuing to increase and more state enacting marijuana reforms, a nationwide federal prohibition on marijuana is quickly becoming untenable.
But if uniformly enforced federal marijuana prohibition is no longer sustainable, what should a new policy look like? Perhaps because the prospect of a move away from federal marijuana prohibition has seemed so remote for so long, there has not been much serious dialogue about the pros and cons of the different federal policy options. So much energy has been directed at the debate about whether to change federal marijuana laws that the question of how to change them has been almost an afterthought. Barring a dramatic political reversal, however, it is no longer a matter of if but when, and that makes the how of federal marijuana reform increasingly important.