CrimProf Blog

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

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Monday, July 27, 2015

Solan & Dahmen on Legal Indeterminacy in the Spoken Word

Lawrence M. Solan and Silvia Dahmen (Brooklyn Law School and University of Cologne) have posted Legal Indeterminacy in the Spoken Word on SSRN. Here is the abstract:

A great deal is written about difficulties in construing legal texts. Much less effort has gone into identifying interpretive problems that result from spoken language. This paper does that, by discussing how our abilities to perceive and understand speech lead to misunderstandings in legal contexts. Specifically, there are numerous battles over what was actually said in recorded speech. These disagreements are often reflected in disputes over how the interaction should be transcribed. We discuss many such examples, and explain them in terms of well-studied phonetic phenomena. These include our difficulty in segmenting speech into words (we speak without using a spacebar), and, in English, the fact that unstressed vowels, and some consonants, are reduced to the point of being indistinguishable, or even inaudible. For purposes of exposition, we compare cases involving the misperception of recorded speech in legal contexts with the misperception of song lyrics. Finally, we discuss our lack of memory for both the exact words spoken, and for human voices with which we are not sufficiently familiar. Our failure to recall exact words creates serious problems for the legal system with respect to prosecuting false statements made verbally, and enforcing oral contracts.

July 27, 2015 | Permalink | Comments (0)

Sunday, July 26, 2015

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 330 'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics 
Ira Mark Ellman and Tara Ellman 
Arizona State University College of Law and Independent 
Date posted to database: 9 Jun 2015 
2 291 Ten Years of Commitment Decisions Under Article 9 of Regulation 1/2003: Too Much of a Good Thing? 
Wouter P. J. Wils 
King's College London 
Date posted to database: 13 Jun 2015 [3rd last week]
3 200 Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 9 Jul 2015 [4th last week]
4 195 Gideon's Servants and the Criminalization of Poverty 
Alexandra Natapoff 
Loyola Law School Los Angeles 
Date posted to database: 28 Jun 2015 [new to top ten]
5 162 Invisible Women: Mass Incarceration's Forgotten Casualties 
Michele Goodwin 
University of California, Irvine School of Law 
Date posted to database: 10 Jun 2015 
6 142 Riders on the Storm: An Analysis of Credit Card Fraud Cases 
Ioana Vasiu and Lucian Vasiu 
Babes-Bolyai University - Faculty of Law and Independent 
Date posted to database: 4 Jun 2015 [7th last week]
7 131 Prison Abolition and Grounded Justice 
Allegra M. McLeod 
Georgetown University Law Center 
Date posted to database: 2 Jul 2015 [new to top ten]
8 128 Implementing Just Mercy 
William W. Berry 
University of Mississippi School of Law 
Date posted to database: 25 May 2015 
9 120 This is Your Brain on Human Rights: Moral Enhancement and Human Rights 
I. Glenn Cohen 
Harvard Law School 
Date posted to database: 28 May 2015 
10 128 Sex Offender Law and the Geography of Victimization 
Amanda Y. Agan and J.J. Prescott 
Princeton University - Department of Economics and University of Michigan Law School 
Date posted to database: 4 Jun 2015 

July 26, 2015 | Permalink | Comments (0)

Saturday, July 25, 2015

Heyman on Proportionality and Accomplice Liability

Heyman-michaelMichael Heyman (The John Marshall Law School) has posted Losing All Sense of Proportion: The Peculiar Law of Accomplice Liability (St. John's Law Review , Vol. 87, p. 129, Winter 2013) on SSRN. Here is the abstract:

A teenage boy is walking with a friend, when the two encounter a drug dealer known to his friend. The dealer and his friend try to discuss the terms of a purchase, but the dealer only speaks Spanish, thus frustrating the negotiation. However, the other boy speaks Spanish, and translates a few key terms, when asked, such as the cost and amount of the controlled substance to be purchased.

After the transaction is completed, all three are arrested. The two friends are tried and convicted, as both receive the mandatory 10-year sentence for the offenses charged. Though this makes no sense, it is the constant result under American accomplice law, one that almost invariably treats the primary actor and the accomplice identically. This piece examines that law, both acknowledging the appropriateness of providing some form of accomplice liability, while at the same time recommending ways in which laws can be tailored so that the punishment more justly fits the crimes.

July 25, 2015 | Permalink | Comments (0)

Friday, July 24, 2015

Goodmark et al. on Gender Violence

Leigh Goodmark Juanita Flores Julie Goldscheid Andrea Ritchie and SpearIt (University of Maryland Francis King Carey School of Law , Independent , CUNY School of Law , Independent and Texas Southern University - Thurgood Marshall School of Law) have posted Plenary 2 -- Redefining Gender Violence -- Transcripts from Converge! Reimagining the Movement to End Gender Violence (University of Miami Race & Social Justice Law Review, Vol. 5, p. 289, 2015) on SSRN. Here is the abstract:

These comments are transcripts from a plenary panel of discussants at Converge! Reimagining the Movement to End Gender Violence, a conference held at the University of Miami School of Law, February 7-8, 2014. The theme of the discussion is exploring gender violence in different contexts and, given the variety of forms, to develop a viable definition for gender violence.

July 24, 2015 | Permalink | Comments (0)

SpearIt on Financial Obligations Beyond Sentence

SpearitSpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Shackles Beyond the Sentence: How Legal Financial Obligations Create a Permanent Underclass (1 Impact 46 (2015)) on SSRN. Here is the abstract:

This essay argues that legal financial obligations (LFOs) literally make the poor pay for failed criminal justice policy. Reliance on mass imprisonment has created a financial vortex, which sucks away the majority of over $50 billion spent on corrections by the states alone. This penal entrenchment has pushed legislatures to devise ways to make criminals help foot the bill, with LFOs representing a modern iteration of state and local fundraising. LFOs add to an array of legal consequences that create a permanent underclass and keep a lock on individuals long after they leave prison. It is a schema that serves little social or penal purpose, and instead embodies the worst of bad policy undermining the criminal justice system.

July 24, 2015 | Permalink | Comments (0)

Eck & Weisburd on Crime Places in Crime Theory

John E. Eck and David L. Weisburd (University of Cincinnati and Hebrew University of Jerusalem) have posted Crime Places in Crime Theory (Crime and Place: Crime Prevention Studies, 4 (pp. 1-33)) on SSRN. Here is the abstract:

Criminologists and crime prevention practitioners are increasingly aware of the importance of places of crime. A place is a very small area, usually a street corner, address, building, or street segment. A focus on crime places contrasts with a focus on neighborhoods. Neighborhood theories usually highlight the development of offenders. while place level explanations emphasize crime events. Three perspectives suggest the importance of places for understanding crime: rational choice; routine activity theory; and crime pattern theory. Though these perspectives are mutually supportive, routine activity theory and crime pattern theory provide different explanations for crime occurring at different places. Five areas of research help us understand the importance of places: crime concentration about particular facilities (e.g., bars); the high concentration of crime at some addresses and the absence of crime at others; the preventive effects of various place features; the mobility of offenders; and studies of how offenders select targets. Concern has been expressed that efforts to prevent crime at specific locations will only move it to other, unprotected locations. Recent research suggests that these fears may be exaggerated, and that under some circumstances the opposite effect occurs: instead of crime displacing, the benefits of the prevention efforts diffuse to unprotected locations. This paper concludes with a review of the 14 original articles in this volume.

July 24, 2015 | Permalink | Comments (0)

Meyn on The Lightness of the Prosecutor's Burden

Meyn ionIon Meyn (University of Wisconsin Law School) has posted The Lightness of the Prosecutor's Burden on SSRN. Here is the abstract:

Given a prosecutor’s demanding burden of proof, most people believe the prosecutor has a tougher time winning a case than does a civil plaintiff. But the opposite is likely true. This seems counter-intuitive until one considers underlying conditions that animate each forum. A civil plaintiff operates within a competitive forum. This makes winning more difficult. Conditions unique to criminal law, however, give the prosecutor asymmetrical control over resources, facts, and process. In addition, racial and class bias gives special force to narratives of guilt. Under these conditions, the prosecutor’s burden becomes a paper tiger. 

The prosecutor has ultimately become the chief beneficiary of her own burden. Though the prosecutor faces little resistance in securing a conviction, her burden is perceived as demanding. This mismatch between perception and reality confers concrete benefits. Easy kills are nevertheless afforded a high degree of legitimacy. Prosecutors also use the burden as shield to deflect criticism for a failure to charge and for convicting the wrong defendant. The burden is also used to slow expansion of due process under the rationale that protections are superfluous in light of the burden’s error-correcting power. 

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July 24, 2015 | Permalink | Comments (0)

Smith & Vasquez on Crime and Vigilance

Lones Smith and Jorge Vásquez (University of Wisconsin at Madison - Department of Economics and University of Wisconsin at Madison - Department of Economics) have posted Crime and Vigilance on SSRN. Here is the abstract:

This paper develops a novel equilibrium theory of property crime. A population of potential victims elects how much costly vigilance to exert to guard their property, while a population of potential criminals chooses whether to engage in crime, and if so, how much, and what caliber of offenses to attempt. Crimes arise from random encounters of criminals and potential victims. The deterrence rate --- namely, the failure chance of an attempted crime --- rises in vigilance and falls in caliber. It acts as a market-clearing price in the unique equilibrium, equilibrating actions of all agents.

Our model predicts how changes in the values of goods to criminal or owner, legal punishment, the technology of theft, or vigilance, or policing affect seven observables: the crime rate, attempted crime rate, deterrence rate, criminal entry rates, offenses per criminal, criminal caliber, and victims' vigilance expenses. Most predictions are new, and make sense of a wide array of empirical work. Many are also contrary to intuitive decision theory predictions of criminal or victim behavior, due to equilibrium feedback effects. For instance, we contradict two key theoretical predictions in Becker (1968) --- e.g., he claimed that more severe punishment lowers the criminal offenses, but we find instead that it crowds out vigilance, and thereby raises offenses for all criminals.

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July 24, 2015 | Permalink | Comments (0)

Thursday, July 23, 2015

Boni-Saenz on Sexuality and Incapacity

Boni-Saenz_Alexander_portraitAlexander A. Boni-Saenz (Chicago-Kent College of Law) has posted Sexuality and Incapacity (Ohio State Law Journal, Vol. 76, 2015, Forthcoming) on SSRN. Here is the abstract:

Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities. These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs. However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity. This is despite the fact that they still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks. The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network. In other words, the right to sexual expression should not be withheld due to cognitive impairment alone.

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July 23, 2015 | Permalink | Comments (0)

Gruber on Distributional Analysis in Critical Criminal Law Theorizing

Gruber ayaAya Gruber (University of Colorado Law School) has posted When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing (Fordham Law Review, Vol. 83, No. 3211, 2015) on SSRN. Here is the abstract:

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. On the one hand, critical race and feminist scholars are by-and-large vocal critics of the American penal state’s punitivity, masculinist nature, and disproportionate effects on minorities. On the other hand, much left-leaning criminal scholarship involves identifying crimes against minorities and women (domestic violence, rape, hate crimes, etc.), exposing lackluster police and prosecutorial responses, and calling for reforms to increase arrests, prosecutions, and sentence severity. Progressives find themselves in the contradictory position of regarding the U.S. criminal system as cruel, sexist, racist, and unfair, but investing more power in that very system in the hope of reducing crime against minorities. 

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July 23, 2015 | Permalink | Comments (0)

Gilbert, Guinn & Reppucci on Race, Socioeconomic Status, and Blame

Elizabeth A Gilbert Alexander D. Guinn and Dick Reppucci (University of Virginia , University of Virginia and University of Virginia (UVA) - Psychology) have posted Race and SES Interact to Influence Blame Judgments on SSRN. Here is the abstract:

Both black juveniles and low-socioeconomic status (SES) juveniles are disproportionately represented in the U.S. legal system, yet minimal experimental work has addressed how race and SES might interact when predicting potential jurors’ judgments about juvenile guilt, blame, and punishment. Across two vignette experiments (N = 799) that varied a juvenile defendant’s race (black or white) and SES (low or high), we found that race and SES interacted such that low-SES black and high-SES white juveniles tended to be judged as more guilty, more blameworthy, and more deserving of punishment than their high-SES black and low-SES white counterparts. Moreover, perceptions of the juveniles’ likelihood of recidivism, past criminality, and character may mediate these effects. These perhaps surprising results add to a growing body of literature suggesting that stereotypes or other irrelevant factors may influence blame judgments and have important implications for the justice system.

July 23, 2015 | Permalink | Comments (0)

Kugler & Strahilevitz on Surveillance Duration and Privacy Expectations

Matthew B. Kugler and Lior Strahilevitz (University of Chicago - Law School and University of Chicago Law School) have posted Surveillance Duration Doesn't Affect Privacy Expectations: An Empirical Test of the Mosaic Theory on SSRN. Here is the abstract:

In the landmark case of United States v. Jones, as many as five Supreme Court justices indicated that tracking the geolocation of a car for a month would be a Fourth Amendment search even though tracking the same car for a day would not be. This duration distinction is based on an influential theory of the Fourth Amendment, dubbed the mosaic theory, which posits that the aggregation of several non-searches of the same person might amount to a search. Jurists have justified the mosaic theory’s duration-sensitivity by grounding it in their sense of “popular attitudes” regarding privacy expectations. Through an empirical examination of survey responses from three large nationally representative samples totaling over 2800 US citizens, we show that Americans’ actual privacy expectations run directly counter to the mosaic theory. Where the mosaic theory says that tracking duration affects citizens’ expectations of privacy, ordinary Americans overwhelmingly say it does not. Our data also reveal that younger Americans and those Americans holding the most firmly anti-authoritarian views have significantly greater expectations of privacy in geolocation information than their fellow citizens. Americans do say that longer duration surveillance is more intrusive than shorter duration surveillance, but the magnitude of this effect remains small.

We explore the implications of these findings for the mosaic theory by considering the role of public opinion data in Fourth Amendment doctrine more generally.

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July 23, 2015 | Permalink | Comments (0)

Podgor & Dervan on Categorizing White Collar Crime

Ellen S. Podgor and Lucian E. Dervan (Stetson University College of Law and Southern Illinois University School of Law) have posted 'White Collar Crime': Still Hazy After All These Years (Georgia Law Review, Vol. 50, No. 3, 2016 Forthcoming) on SSRN. Here is the abstract:

With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice, and RICO. The empirical analysis suggests the need for an individualized multivariate approach to categorizing white collar crime to guard against broad federal statutes providing either under-inclusive or over-inclusive examination of this form of criminality.

July 23, 2015 | Permalink | Comments (0)

Wednesday, July 22, 2015

Sherrin on Earwitness Evidence

Christopher Sherrin (University of Western Ontario Faculty of Law) has posted Earwitness Evidence: The Reliability of Voice Identifications (Osgoode Hall Law Journal, Vol. 52(3), 2015, Forthcoming) on SSRN. Here is the abstract:

This article discusses the reliability of non-expert voice identification evidence. While much attention has been paid to the frailties of eyewitness evidence, little attention has been given to the frailties of ‘earwitness’ evidence, even though it has been tendered in several wrongful conviction cases. The author reviews the results of the empirical literature that has examined the reliability of earwitness evidence. The author also analyzes the principal factors used by Canadian criminal courts to assess earwitness reliability in light of the empirical study of those factors. The general conclusions are that earwitness evidence can often be quite unreliable and that the courts have not always properly assessed its reliability.

July 22, 2015 | Permalink | Comments (0)

Dusek on Simpler Criminal Procedure

Libor Dusek (University of Economics in Prague) has posted The Effects of a Simpler Criminal Procedure on Criminal Case Outcomes: Evidence from Czech District-Level Data on SSRN. Here is the abstract:

The paper estimates the effects of a simpler criminal procedure on case durations and the probabilities that the defendant is charged and convicted. The identification strategy exploits a policy reform in the Czech Republic as a quasi-natural experiment. The reform allowed petty offenses to be prosecuted via a simplified (fast-track) procedure but its actual implementation varied substantially across districts. The fast-track procedure reduced the average duration of the police/prosecutor phase of the criminal procedure by 27 days on average for the petty offenses. It increased the probability that the suspect is charged by 6 percentage points. The fast-track procedure released resources that could potentially be spent on prosecuting serious crimes; I therefore investigate for spillover effects. I find only weak evidence of such spillover effects on the probability that the suspect is charged and no evidence of spillover effects on other case outcomes.

July 22, 2015 | Permalink | Comments (0)

Tuesday, July 21, 2015

Alkon on Defense Discovery in Plea Bargaining

Alkon_cynthia1Cynthia Alkon (Texas A&M University School of Law) has posted The Right to Defense Discovery in Plea Bargaining Fifty Years After Brady v. Maryland (New York University Review of Law & Social Change, Vol. 38, No. 407, 2014) on SSRN. Here is the abstract:

Fifty years after Brady v. Maryland, defense attorneys around the United States continue to struggle to get basic information from prosecutors. This is even more of an issue in the ninety-four to ninety-seven percent of criminal cases that are resolved by guilty pleas. Unfortunately, the rule the Supreme Court established in Brady does little to prevent gamesmanship. In Brady, the Court required the prosecution to turn over “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The Brady standard developed, however, in the context of a case that went to trial; thus far the Court has not shown an understanding of the discovery concerns specific to plea bargaining. This failure persists despite the fact that our criminal justice system depends on plea bargaining and routinely penalizes defendants who either do not plead guilty or who do not plead guilty early in the process. As long as prosecutors do not withhold exculpatory information, Brady provides no protection against prosecutors who want to link plea offers to discovery.

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July 21, 2015 | Permalink | Comments (0)

Parness on Illinois Crime Victim Restitution

Parness jeffreyJeffrey A. Parness (Northern Illinois University - College of Law) has posted The New Illinois Constitutional Crime Victim Restitution Right: A Revolutionary Amendment? (27 DCBA Brief 26 (July 2015)) on SSRN. Here is the abstract:

Before 1992, any crime victim restitution rights in Illinois were subject to General Assembly direction and, perhaps, some nonconstitutional common law developments. A 1992 Illinois constitutional amendment expressly recognized for crime victims “the right to restitution,” though this right was only “as provided by law,” meaning continuing, and perhaps now exclusive, General Assembly authority. A 2014 Illinois constitutional amendment removed the “as provided by law” language while explicitly recognizing that a crime victim “has standing to assert” the restitution right “in any court exercising jurisdiction over the case,” albeit as nonparty. The 2014 amendment did leave to the General Assembly the responsibility for defining crime “victims.” Further, the 2014 amendment largely left the victims to their own devises since the new restitution right is not to be “construed to alter the powers, duties, and responsibilities of the prosecuting attorney” and since the “court shall not appoint an attorney for the victim.” Yet the trial court is required under the 2014 amendment to “promptly rule on a victim’s request.”

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July 21, 2015 | Permalink | Comments (0)

Monday, July 20, 2015

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 323 'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics 
Ira Mark Ellman and Tara Ellman 
Arizona State University College of Law and Independent 
Date posted to database: 9 Jun 2015 [2nd last week]
2 269 Disparities in Discipline: A Look at School Disciplinary Actions for Utah's American Indian Students 
Vanessa Walsh 
Independent 
Date posted to database: 23 May 2015 [3rd last week]
3 258 Ten Years of Commitment Decisions Under Article 9 of Regulation 1/2003: Too Much of a Good Thing? 
Wouter P. J. Wils 
King's College London 
Date posted to database: 13 Jun 2015 [4th last week]
4 162 Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 9 Jul 2015 [new to top ten]
5 154 Invisible Women: Mass Incarceration's Forgotten Casualties 
Michele Goodwin 
University of California, Irvine School of Law 
Date posted to database: 10 Jun 2015 [6th last week]
6 142 Anti-Impunity and the Turn to Criminal Law in Human Rights 
Karen Engle 
University of Texas at Austin - School of Law 
Date posted to database: 15 May 2015 [7th last week]
7 127 Riders on the Storm: An Analysis of Credit Card Fraud Cases 
Ioana Vasiu and Lucian Vasiu 
Babes-Bolyai University - Faculty of Law and Independent 
Date posted to database: 4 Jun 2015 [new to the top ten]
8 125 Implementing Just Mercy 
William W. Berry 
University of Mississippi School of Law 
Date posted to database: 25 May 2015 [9th last week]
9 120 This is Your Brain on Human Rights: Moral Enhancement and Human Rights 
I. Glenn Cohen 
Harvard Law School 
Date posted to database: 28 May 2015 [10th last week]
10 116 Sex Offender Law and the Geography of Victimization 
Amanda Y. Agan and J.J. Prescott 
Princeton University - Department of Economics and University of Michigan Law School 
Date posted to database: 4 Jun 2015 [new to top ten]

July 20, 2015 | Permalink | Comments (0)

Yin on Congressional Violations of Taxpayer Privacy

George K. Yin (University of Virginia School of Law) has posted Preventing Congressional Violations of Taxpayer Privacy (Tax Lawyer, Forthcoming) on SSRN. Here is the abstract:

This article claims that the U.S. House Ways & Means Committee violated the law in 2014 when it voted (strictly along party lines) to release to the public the tax return information of 51 taxpayers. The committee acted under the belief that an obscure tax law provision authorized its action. But the provision required the committee to have a legitimate purpose for the disclosures and — incredibly — the committee failed to satisfy this almost trivial, common-sense restriction. Although the disclosures occurred in connection with the committee’s allegations of possible criminal misconduct by a high-ranking IRS official (Lois Lerner), most of the return information released was completely unrelated to the oversight objective and none of it was necessary for the committee’s claims. In fact, there does not appear to have been any purpose whatsoever for the disclosures other than possibly providing a partisan political advantage to the committee majority. Because the Speech or Debate Clause of the Constitution insulated the committee from prosecution for the violation, the incident reveals a serious gap in taxpayer privacy protections. A future tax committee, for no legitimate reason, might release with impunity the return information of any taxpayer, including sensitive information belonging to a political enemy of those controlling the committee at the time.

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July 20, 2015 | Permalink | Comments (0)

Sunday, July 19, 2015

Kerr on Use Restrictions on Nonresponsive Data

Kerr orinOrin S. Kerr (The George Washington University Law School) has posted Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data (Texas Tech Law Review (Forthcoming)) on SSRN. Here is the abstract: 

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. If agents can seize everything at the first stage, and see all the data at the second stage, what stops agents from accessing and using a target’s entire digital world every time a computer warrant is executed? 

This article argues that the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data seized during the execution of computer warrants.

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July 19, 2015 | Permalink | Comments (0)