CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, October 22, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Tennessee College of Law

Date Posted: 28 Aug 2017 

3,688
2.
Brooklyn Law School and Hofstra University

Date Posted: 04 Oct 2017 [4th last week]

138
3.
Vanderbilt University - Law School

Date Posted: 10 Oct 2017 [new to top ten]

126
4.
University of North Carolina School of Law

Date Posted: 07 Sep 2017 [3rd last week]

125
5.
University of Mississippi, School of Law, Students

Date Posted: 26 Aug 2017 

111
6.
Vanderbilt University - Law School

Date Posted: 04 Oct 2017 [7th last week]

100
7.
University of Miami and University of Miami

Date Posted: 28 Aug 2017 [new to top ten]

91
8.
Stanford Law School and University of California, Los Angeles (UCLA) - School of Law

Date Posted: 10 Oct 2017 [new to top ten]

71
9.
University of San Diego School of Law

Date Posted: 21 Aug 2017 [8th last week]

66
10.
Thomas Jefferson School of Law

Date Posted: 23 Aug 2017 [9th last week]

55

October 22, 2017 | Permalink | Comments (0)

Green on The Legal Enforcement of Integrity

GREEN -STUARTStuart P. Green (Rutgers Law School) has posted The Legal Enforcement of Integrity (Christian B. Miller and Ryan West (eds.), Integrity, Honesty, and Truth-Seeking, Forthcoming) on SSRN. Here is the abstract:
 
Talk of “integrity” is ubiquitous in law and legal discourse: Protecting the integrity of our political system has been cited as a basis for anti-corruption laws; preserving the integrity of the legal profession as a principle underlying the rules of lawyer ethics; ensuring integrity in policing and in the wider criminal justice system as a justification for excluding evidence obtained in violation of the Constitution; and protecting bodily integrity as a potential goal for the law of rape and sexual assault. This chapter examines what integrity means in each of these contexts, what these uses have in common, and whether thinking about these various rules and doctrines in terms of integrity rather than other moral concepts leads to any practical difference in outcome; and it asks what the examination of integrity in the law can tell us about the concept of integrity in other contexts.

October 22, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402

The George Washington University Law School
865
2.

Forensic Science: Daubert's Failure

Case Western Reserve University School of Law
422
3.

Feeding the Machine: Policing, Crime Data, & Algorithms

University of California, Davis - School of Law
343
4.

Understanding 'Sanctuary Cities'

University of Denver Sturm College of Law, University of Minnesota School of Law - Center for New Americans, University of California, Los Angeles (UCLA) - School of Law, New England Law | Boston, University of California, Irvine School of Law, The University of Tulsa College of Law and Lewis & Clark Law School
173
5.

Reconceiving the Standard Conception of the Prosecutor's Role

University of Calgary
154
6.

Combating Prosecutor Misconduct in Closing Arguments

Independent
128
7.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
126
8.

Carpenter v. United States: Brief of Scholars of Criminal Procedure and Privacy as Amici Curiae in Support of Petitioner

University of the District of Columbia - David A. Clarke School of Law
121
9.

Criminalizing Race: Racial Disparities in Plea Bargaining

Loyola Law School Los Angeles
101
10.

Mental Health and False Confessions

University of Nevada, Reno, University of San Francisco - School of Law and University of Nevada, Reno
89

October 22, 2017 | Permalink | Comments (0)

Saturday, October 21, 2017

Struve on Inmate Appeals

Catherine T. Struve (University of Pennsylvania Law School) has posted The Federal Rules of Inmate Appeals (Arizona State Law Journal, Vol. 50 (2018, Forthcoming)) on SSRN. Here is the abstract:
 
The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals. And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals. In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities – and underscores the salience of local court practices and institutional partnerships.

October 21, 2017 | Permalink | Comments (0)

Friday, October 20, 2017

Huskey on Justice for Veterans

Huskey kristineKristine A. Huskey (University of Arizona - James E. Rogers College of Law) has posted Justice for Veterans: Does Theory Matter? (59 Arizona Law Review 697 (2017)) on SSRN. Here is the abstract:
 
The Veterans Treatment Court (“VTC”) movement is sweeping the nation. In 2008, there were approximately five courts. Currently, there are over 350 VTCs and veteran-oriented tracks in the United States. Most view this rapid proliferation as a positive phenomenon. VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them. This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.

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October 20, 2017 | Permalink | Comments (0)

Mallatt on Prescription Monitoring and Heroin Crime Rates

Justine Mallatt (Purdue University - Department of Economics) has posted The Effect of Prescription Drug Monitoring Programs on Opioid Prescriptions and Heroin Crime Rates on SSRN. Here is the abstract:
 
In response to growing abuse of prescription opioid painkillers, 50 U.S. states have implemented electronic prescription drug monitoring programs (PDMPs) that record patients into a state-wide registry when a prescription opioid is received. This paper uses a difference-in-differences regression framework and interactive fixed effects factor models to identify the effect of PDMPs and two related programs on the types and strengths of opioid painkiller prescriptions filled and on rates of heroin crimes. The implementation of PDMP databases caused an 8% decrease in the amount of oxycodone shipments, with results from Medicaid prescription data pointing to larger decreases within high dosage pills. PDMPs have heterogeneous effects on heroin crime incidents across counties depending on the county's pre-policy level of prescription opioid milligrams per capita, with an 87% increase in heroin crime within the most opioid-dense counties.

October 20, 2017 | Permalink | Comments (0)

Thursday, October 19, 2017

"Who can access your e-mails after you die?"

Orin Kerr has this post at The Volokh Conspiracy. In part:

The case arose after John Ajemian died from a cycling accident. He didn’t have a will, and his siblings were appointed personal representatives of his estate. Ajemian’s siblings knew that their brother had kept a personal Yahoo e-mail account for several years. They wanted to access the account’s contents. Yahoo refused to disclose them, however, citing the ban on disclosure imposed by the federal law known as the Stored Communications Act. The act basically says that email providers can’t disclose private emails unless a specific exception applies. According to Yahoo, no exception applied. Ajemian was dead, and he wasn’t alive to consent to the disclosure of his emails. As a result, Yahoo argued, they couldn’t disclose the emails.

The Massachusetts Supreme Judicial Court, the state’s highest court, disagreed.

October 19, 2017 | Permalink | Comments (0)

"Nation’s top cops, prosecutors urge Trump not to roll back successful crime policies"

From The Washington Post, via the NACDL news scan:

The Law Enforcement Leaders to Reduce Crime & Incarcerationsent a letter to Sessions and President Trump, and held a summit meeting in Washington, in which they were adamant that crime has been steadily declining across America for a quarter-century, not spiraling upward as the president is sometimes inclined to claim. They think  the decline is a result of smarter policing and more careful prosecution. But Sessions has called for increased drug prosecution and ordered federal prosecutors to seek the stiffest possible sentences in all cases, regardless of circumstance.

October 19, 2017 | Permalink | Comments (0)

Rothstein on Burdens and Presumptions

 
Evidentiary presumptions in law act as shortcuts to rigorous proof. By means of an evidentiary presumption, a difficult-to-prove critical fact may be established by proving some other more easily provable subsidiary fact from which the critical fact may be presumed. This accounts for the popularity of these presumptions with trial lawyers.

But the puzzling question has always been, “What effect on the normal processes of trial, does a legal presumption have, especially when there is other evidence pro and con on the presumed fact?” This article aims to shed light on these problems, and to examine the arsenal of tools available to help solve them or at least to help think about solving them. 

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October 19, 2017 | Permalink | Comments (0)

Bloch-Wehba on Exposing Secret Searches

Hannah Bloch-Wehba (Yale University - Yale Information Society Project) has posted Exposing Secret Searches: A First Amendment Right of Access to Electronic Surveillance Orders (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy — in the form of gag orders, local judicial rules, and even clerical filing and docketing practices — is built into the laws that regulate electronic surveillance. 

This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents.

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October 19, 2017 | Permalink | Comments (0)

Chacon on Criminalizing Immigration

Chacon jenniferJennifer M. Chacón (University of California, Irvine School of Law) has posted Criminalizing Immigration (1 REFORMING CRIMINAL JUSTICE: INTRODUCTION AND CRIMINALIZATION (Erik Luna ed., 2017)) on SSRN. Here is the abstract:
 
Over the past two decades, criminal justice systems at both the federal and the state level have been repurposed to serve immigration enforcement goals. Many significant problems in the criminal justice system have been both mirrored in and amplified by this criminalization of immigration. Generous immigration reform and the decriminalization of many migration-related offenses are needed to address the resulting problems comprehensively. But more limited reforms within state and federal criminal enforcement systems can help mitigate some of the biggest problems in the current system. This chapter recommends that all law enforcement agencies develop legal guidelines and training that discourage reliance on racial profiling in immigration policing, that states and localities prioritize their own state public safety goals over cooperation with federal immigration enforcement efforts when such efforts undermine those goals, and that state and local laws and practices be revised so as to send appropriate signals of leniency to immigration adjudicators and enforcement agents.

October 19, 2017 | Permalink | Comments (0)

Harmon & Manns on Terry and Proactive Policing

Rachel Harmon and Andrew Manns (University of Virginia School of Law and University of Virginia School of Law, J.D. 2017) have posted Proactive Policing and the Legacy of Terry (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
 
This essay explores the critical relationship between Terry v. Ohio and contemporary proactive policing strategies. Unlike most Supreme Court cases, which portray policing only in the form of criminal investigation, in Terry’s portrayal, officers roam urban streets and intervene to solve problems as they emerge. Yet, we argue, even as Terry provided a more realistic picture of traditional patrol policing, it also made possible the forms of policing that now supplement and even displace that model. Contemporary proactive policing strategies often utilize stops and frisks programmatically to prevent crime rather than uncover or respond to it. The Terry Court recognized that constitutional law could not fully regulate traditional policing on urban streets. We argue that the doctrine is even less useful for managing the new world of policing that Terry has wrought.

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October 19, 2017 | Permalink | Comments (0)

Gray on Searches

Gray david cDavid C. Gray (University of Maryland Francis King Carey School of Law) has posted an abstract of The Fourth Amendment Categorical Imperative (116 Michigan Law Review Online 14 (2017)) on SSRN. Here is the abstract:
 
In an effort to bring the Fourth Amendment into the twentieth century, the Court formulated a brand-new definition of “search” in Katz v. United States based on reasonable expectations of privacy. Although perhaps progressive for its time, the Katz definition of “search” has rendered the Fourth Amendment nearly moot in the twenty-first century. That is because modern tracking, surveillance, data aggregation, and data analysis technologies — all of which engage in “searches” by any common definition — exploit information in which, the Court has held, we do not have reasonable expectations of privacy. As a consequence, searches conducted using these means and methods are not regulated by the Fourth Amendment because they are not regarded as “searches” at all. 

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October 19, 2017 | Permalink | Comments (0)

Lu on Sentencing

Jack Lu (Boston University - School of Law) has posted Sentencing ‘Best Practices’ a Must Read for the Criminal Bar (Massachusetts Lawyers Weekly Boston, Massachusetts, July 28, 2017) on SSRN. Here is the abstract:
 
This short article provides a quick overview of the Massachusetts Judiciary's Sentencing Best Practices document.

October 19, 2017 | Permalink | Comments (0)

Wednesday, October 18, 2017

Mayeux on The Idea of "The Criminal Justice System"

Mayeux saraSara Mayeux (Vanderbilt University - Law School) has posted The Idea of 'The Criminal Justice System' (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
 
The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science. The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.” Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

October 18, 2017 | Permalink | Comments (0)

Lemley & Volokh on Virtual Reality

Mark A. Lemley and Eugene Volokh (Stanford Law School and University of California, Los Angeles (UCLA) - School of Law) have posted The Real Law of Virtual Reality on SSRN. Here is the abstract:
 
This is an edited version of a talk one of us (Lemley) gave at the UC Davis symposium on the future of law. We explore legal issues that will arise in virtual reality and augmented reality, particularly those stemming from the fact that VR is a visceral experience that blurs the line between information and the physical. The fact that people experience VR as real even when they know it isn't has implications for tort and criminal law. The ability to design and change the terms of people's interaction in virtual reality has significant implications for the role of law vs. self-help. In VR, code IS law in a very real sense.

October 18, 2017 | Permalink | Comments (0)

Langmann on Mass Homicide

Caillin Langmann (McMaster University) has posted Mass Homicide and Canada on SSRN. Here is the abstract:
 
Tragedies as the recent shooting of RCMP officers in Moncton, New Brunswick, raise questions about why these occur and what can be done to prevent these horrible events. There are often many theories raised in the media and by special interest groups but in reality little is known about what are relatively rare incidents. A brief discussion of mass homicide in Canada including the history, factors involved, and strategies for mitigation are covered.

October 18, 2017 | Permalink | Comments (0)

Tuesday, October 17, 2017

Segev on Discrimination and Law Enforcement

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted Discrimination and Law Enforcement (The Routledge Handbook of the Ethics of Discrimination (Kasper Lippert-Rasmussen, ed., New-York: Routledge, 2018), pp. 324-334, Forthcoming) on SSRN. Here is the abstract:
 
This chapter considers the moral status of discrimination in law enforcement. The answer to the question what amounts to wrongful discrimination in this context depends on the answer to the question what is the moral status of discrimination in general. Yet the focus in this chapter is on aspects that are especially salient in the context of law enforcement – mainly the moral status of rational discrimination and especially statistical discrimination, for example racial profiling, assuming that it is based on sound statistical information. 

The main claims are that there are often both (pro-tanto) reasons for and (pro-tanto) reasons against statistical discrimination (also) in the context of law enforcement: its contribution to the prevention of (harmful) wrongdoing, on the one hand, and its negative effects of those who are subjected to discrimination, on the other hand. The answer to the question which reasons are decisive depends on the specific context.

October 17, 2017 | Permalink | Comments (0)

Hannon on Race and Pedestrian Frisks

Lance Hannon (Villanova University - College of Liberal Arts and Sciences) has posted An Exploratory Multilevel Analysis of Pedestrian Frisks in Philadelphia (Forthcoming in Race and Justice) on SSRN. Here is the abstract:
 
The City of Philadelphia has faced significant litigation related to racial and ethnic disparities in stop-and-frisk practices. The Philadelphia Police Department has made much of its stop-and-frisk data publicly available in the name of transparency and to facilitate independent investigation (the data describe over 350,000 pedestrian stops with over 45,000 pedestrian frisks for 2014-15). The current analysis made use of this public dataset to explore whether the individual-level relationship between Black racial classification and being subjected to a frisk can be explained by associated neighborhood-level factors such as the violent crime rate. Additionally, the present analysis examined whether variation in the violent crime rate is similarly related to the likelihood of being frisked in predominantly Black versus non-Black areas and whether area racial composition affects the likelihood that an officer’s decision to frisk will be supported with uncovered contraband. The results were consistent with theories of neighborhood racial stigma. In particular, the violent crime rate was a significantly weaker predictor of being frisked in Black areas, and net of a variety of factors at the individual and neighborhood levels, Black citizens and Black places experienced a disproportionate amount of frisks where no contraband was found.

October 17, 2017 | Permalink | Comments (0)

Booth on Obstructing the IRS

Booth kathyrnKathryn Ward Booth (Vanderbilt University Law School) has posted Obstructing by Omission: The Troubling Expansion of the Criminal Offense of Obstructing the IRS and How DOJ Internal Policy Has Played a Role (University of Cincinnati Law Review, Vol. 86 (May 2018, Forthcoming)) on SSRN. Here is the abstract:
 
A majority of circuits hold that it is possible to be convicted of corruptly obstructing the administration of the Internal Revenue laws even if there is no pending IRS proceeding to obstruct. Even more strikingly, the Second Circuit recently held that making an omission is sufficient to obstruct the IRS, which means that it is a federal felony to corruptly not maintain records or to corruptly not provide records to an accountant. Despite the obvious potential problems with these issues, there is very little recent scholarship addressing them. In June, the Supreme Court granted certiorari to consider these issues. 

This article examines the circuit split over whether 26 U.S.C. § 7212(a), interfering with the administration of the Internal Revenue laws, requires that the defendant obstructed a known IRS proceeding.

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October 17, 2017 | Permalink | Comments (0)