Thursday, June 30, 2016
The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.
Ben Trachtenberg (University of Missouri School of Law) has posted Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books (60 Saint Louis University Law Journal 543 (2016)) on SSRN. Here is the abstract:
Among the more important decisions a law teacher makes when preparing a new course is what materials to assign. Criminal procedure teachers are spoiled for choice, with legal publishers offering several options written by teams of renowned scholars. This Article considers how a teacher might choose from the myriad options available and suggests two potentially overlooked criteria: weight and price.
The Article then explores the possibility of providing criminal procedure casebooks to law students for much less money than is currently charged, taking advantage of the public domain status of Supreme Court opinions, which form the backbone of most criminal procedure syllabi. The Article suggests that law schools could encourage faculty to produce casebooks that would be made available to our students for the cost of printing, with electronic versions available gratis (that is, “free” as in “free beer”).
Wednesday, June 29, 2016
Corinna Lain (University of Richmond - School of Law) has posted Death Row, Calls for Indifference, and Redemption of the Soul (77 Ohio St. L.J. Furthermore, Forthcoming) on SSRN. Here is the abstract:
In this essay, an invited response to Marah McLeod’s article "Does the Death Penalty Require Death Row? The Harm of Legislative Silence," I first engage with McLeod’s paper, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with analytical moves along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The other stems from McLeod’s description of death row as originally intended to facilitate redemption of the soul in preparation for destruction of the body. For those who still care about redemption of the soul — and religion runs deep in arguments for the death penalty and against it — how do the conditions of death row impact the opportunity for redemption, and how might the answer to that question contribute to the death penalty discourse today? A good paper asks important questions. A great paper inspires questions of their own. Does the Death Penalty Require Death Row? is a great paper.
The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody.
Stephen Morse (University of Pennsylvania Law School) has posted Actions Speak Louder Than Images: The Use of Neuroscientific Evidence in Criminal Cases (Journal of Law and the Biosciences, pp. 1–7, 2016) on SSRN. Here is the abstract:
This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific evidence to the precise legal question being addressed. These studies demonstrate yet again that in virtually all cases, actions speak louder than images and that when the behavioral evidence is unclear, the neuroscientific evidence is scarcely helpful in resolving the legal issue.
Tuesday, June 28, 2016
Marc Edelman (City University of New York - Baruch College, Zicklin School of Business) has posted A Sure Bet? The Legal Status of Daily Fantasy Sports (Pace Intellectual Property, Sports & Entertainment Law Forum, Forthcoming) on SSRN. Here is the abstract:
This keynote address, delivered at Pace Law School on March 16, 2016, provides an overview of the legal status of “daily fantasy sports” and explains why the legality — or illegality — of the industry is not a sure bet. It begins by providing a brief background of the origins of fantasy sports, and then turns to the impact of technologies such as the Internet, and the legal status of these games under both federal and state laws. It concludes by discussing the recent efforts to regulate “daily fantasy sports” through the courts and legislation.
From The New York Times:
“Mass surveillance doesn’t work,” Mr. Snowden wrote. “This bill will take money and liberty without improving safety.”
Rights activists have protested several elements of the bill, especially a provision making it a crime to fail to report the planning of a terrorist act and another that would make it a crime to write social media posts that justify terrorism. Under the law, Russian cellular and internet providers would have to store all communications data for six months and help security services decipher encrypted messages. Mr. Snowden called it “Russia’s new Big Brother law.”
United Nations Secretary-General Ban Ki-moon [official websites] expressed [official statement] his support for the end to torture under all circumstances on Monday. Speaking onInternational Day in Support of Victims of Torture[UN materials], Ban called the legal prohibition of torture "crystal clear," and stated that the practice can "never be used at any time or under any circumstances, including during conflict or when national security is under threat.". In his statement, Ban emphasized [UN News Centre report] that, "despite its absolute prohibition under international law, this dehumanizing practice remains pervasive and, most disturbingly, is even gaining acceptance." He pointed to theConvention Against Torture [OHCHR materials] which obligates states to prevent torture and redress, compensate and rehabilitate those victims of torture within their jurisdiction. He also asked each of state that ratified the Convention Against Torture, including 159 UN member states to date, to support the UN Voluntary Fund for Victims of Torture [UN materials].
From The New York Times:
The more recent episode took place on April 11, 2015, at a party hosted by Mr. Enochs’s fraternity, Delta Tau Delta. A woman told the police that while she was drinking at the party, she went into the house to look for a bathroom. She said she had later found herself in a room with an unknown male having sex with her, despite her telling him “no” repeatedly and trying to push him away.
. . .
After learning of the 2015 allegations against Mr. Enochs, a second woman pursued criminal charges against him. The woman said that she had blacked out while drinking with Mr. Enochs in her sorority house in October 2013, and was later told by friends that he had had sex with her. She had pain in her genital area for several days and was treated in a hospital soon after, she said, according to a police affidavit.
In a statement on Monday, Mr. Miller said the 2013 case was difficult to prove because the woman had no specific recollection of that night, because of her consumption of alcohol.
He said video and DNA evidence that emerged during the investigation of the 2015 case had made it difficult to prove that Mr. Enochs committed rape.
Nancy J. King and Ronald F. Wright (Vanderbilt University - Law School and Wake Forest University - School of Law) have posted The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony court judges serving as lower court judges, and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research.
Monday, June 27, 2016
Ira P. Robbins (American University - Washington College of Law) has posted Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest (Cornell Journal of Law and Public Policy, Vol. 25, No. 3, 2016) on SSRN. Here is the abstract:
The doctrine of citizen’s arrest in the United States has been ignored for far too long. In every jurisdiction in the United States, a private person may lawfully detain another and often may even use physical force to do so. Placing such power in the hands of ordinary, untrained individuals creates the possibility that citizens will misuse or abuse the privilege, sometimes with serious consequences for both the arrestor and the arrestee. This risk is compounded by the disparate treatment of the citizen’s arrest doctrine in different jurisdictions and the ambiguities inherent in many of the doctrine’s key features — such as whether one may arrest another only on suspicion of a felony, or also for a misdemeanor or breach of the peace; the level of probable cause required to make an arrest; the length of detention that is legally permitted; and the appropriate amount of force used to effectuate the arrest.
James Jacobs and Zoe Fuhr (New York University School of Law and New York University School of Law) have posted The SAFE Act: New York’s Ban on Assault Weapons and Large Capacity Magazines (Criminal Law Bulletin (2017), Forthcoming) on SSRN. Here is the abstract:
The January 2013 New York State Secure Ammunition and Firearms Enforcement Act (SAFE Act) was the most immediate and strongest gun control response to the December 2012 massacre at the Sandy Hook Elementary School in Newtown Connecticut. Among other provisions, it banned new manufacture, sale and possession of semi-automatic rifles, shotguns and pistols with one or more military-style features. Existing owners of these prohibited weapons were grandfathered if they registered with the State Police, but they cannot, even at death, transfer possession to any New York State resident. In addition, the Act prohibits possession of greater than seven (amended to 10) round magazines; there is no grandfathering. This Article closely analyzes the SAFE Act as conceived, implemented and enforced. It cautions that even this strongest of assault weapon and large capacity magazine bans is likely to have little effect on mass killings or gun crime because of conceptual, implementation and enforcement problems.
Renee Lettow Lerner (George Washington University Law School) has posted two pieces on juries. The first is How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury (40 J. Legal Prof. 215 (2016)). Here is the abstract:
The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896.
At The Volokh Conspiracy: Unanimous Supreme Court throws out former Governor Bob McDonnell’s conviction
At White Collar Crime Prof Blog: Should Former Virginia Governor McDonnell's Case Be Retried?
Michael Selmi (George Washington University Law School) has posted Statistical Inequality and Intentional (Not Implicit) Discrimination (Law and Contemporary Problems (2016), Forthcoming) on SSRN. Here is the abstract:
Racial disparities remain a disturbing fact of American life but whether those disparities are the product of discrimination remains deeply contested. This is an important question because as a society we are committed to remedying discrimination but are significantly more conflicted over addressing racial disparities that are not tied to discrimination. This essay explores the question of how we can determine when statistical disparities are the product of discrimination, and relies on two areas where the presence of racial disparities are incontrovertible – police automobile stops and school discipline. Based on a large number of studies, there is little question that African-American drivers are stopped and searched more frequently than whites, even though contraband is found more commonly on white drivers. Similarly, based on studies dating to the 1970s, African-American students are suspended and expelled at rates that are generally three times as high as white students, and there is little reason to believe that the disparities are solely explained by the behavior of African-American students. After refuting the nondiscriminatory explanations that are often offered to justify the disparities, the last part of the essay urges policymakers to treat repeated patterns of behavior as intentional, as opposed to implicit, discrimination, and offers a critique of the recent turn to implicit bias.
Andrew Manuel Crespo (Harvard Law School) has posted Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court (100 Minn. L. Rev. 1985 (2016)) on SSRN. Here is the abstract:
This article analyzes the U.S. Supreme Court's institutional shift over the past four decades toward a prosecutorial perspective. It does so along three dimensions: (1) the rise of antejudicial prosecutorial experience among the Court's membership; (2) the rise of plea bargaining as a prosecutorial tool for shaping the Court's law-making agenda; and, in the greatest depth, (3) the rise of a sharp advocacy gap between criminal defendants and the rest of the increasingly expert Supreme Court bar, including expert advocates for the prosecution. The article critiques this tilt from both a procedural justice and a substantive perspective, and proposes two institutional interventions the Supreme Court itself could take to address the issue. First, it suggests that the Court establish a standing committee within its bar to develop Supreme Court advocacy expertise among the criminal defense bar -- and that it empower that committee to appoint amici curiae to argue alongside criminal defendants in any case in which the U.S. Solicitor General argues in opposition. Second, it suggests that the Court explore amendments to the Federal Rules of Criminal Procedure that would deem constitutional claims presumptively preserved for appellate review even in cases resolved by pleas of guilt.
Sunday, June 26, 2016
|1||201||Living at the Intersection: Laws & Vehicle Residency
Jessica So, Scott MacDonald, Justin Olson,Ryan Mansell and Sara Rankin
Seattle University, School of Law, Students, Seattlle University, School of Law, Students, Seattlle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
Date posted to database: 8 May 2016 [2nd last week]
|2||154||Shut Out: How Barriers Often Prevent Meaningful Access to Emergency Shelter
Suzanne Skinner and Sara Rankin
Seattle University School of Law and Seattle University School of Law
Date posted to database: 10 May 2016 [4th last week]
|3||108||Belief States in Criminal Law
James A Macleod
Date posted to database: 27 Apr 2016 [6th last week]
|4||80||Leniency, Collusion, Corruption, and Whistleblowing
Reinaldo Luz and Giancarlo Spagnolo
CAPES, Coordenação de Aperfeiçoamento de Pessoal de Nível Superior and Stockholm School of Economics (SITE)
Date posted to database: 2 May 2016 [8th last week]
|5||67||Unilateral Invasions of Privacy
Roger Allan Ford
University of New Hampshire School of Law
Date posted to database: 24 Apr 2016 [10th last week]
|6||59||Chapter Two. Retribution and the Limits of Criminal Justice
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 28 Apr 2016 [new to top ten]
|7||48||A Neuro-Legal Lingua Franca: Bridging Law and Neuroscience on the Issue of Self-Control
Joshua W. Buckholtz, Valerie F. Reyna andChristopher Slobogin
Harvard University, Cornell University and Vanderbilt University - Law School
Date posted to database: 2 Jun 2016 [new to top ten]
|8||45||Chapter Three. The Case Against Retribution
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 9 May 2016 [new to top ten]
|9||43||'Your Corrupt Ways Had Finally Made You Blind': Prosecutorial Misconduct and the Use of 'Ethnic Adjustments' in Death Penalty Cases of Defendants with Intellectual Disabilities
Michael L. Perlin
New York Law School
Date posted to database: 23 May 2016 [new to top ten]
|10||42||Is Increased Criminal Liability for Regulatory Offenses Justified?
Rena I. Steinzor
University of Maryland Francis King Carey School of Law
Date posted to database: 27 Apr 2016 [new to top ten]
The White House [official website] announced [press release] on Friday a series of programs aimed at ensuring that former prisoners have better resources to transition back into the community. The administration said that improving education and job opportunities can reduce crime. One of the programs will provide 12,000 state and federal prison inmates government funding in order for them to take college courses. The measures will link [Reuters report] 67 colleges and universities with 141 correctional facilities to provide education and training offer federal Pell grants to prisoners, and offer grants to organizations to offer occupational training and apprenticeship opportunities. Other programs will also provide funding to organizations to provide job training to young adults, develop career pathways programs for residents of high-poverty areas, and provide mentorship and career training to high school students at risk of dropping out.