Monday, September 19, 2016
|1||274||Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016
|2||181||What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016 [new to top ten]
|3||145||When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 7 Sep 2016 [new to top ten]
|4||118||A Theory of Bribery
University of Virginia - School of Law
Date posted to database: 25 Aug 2016 [3rd last week]
|5||107||Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses
Anthony M. Dillof
Wayne State University Law School
Date posted to database: 19 Jul 2016 [4th last week]
|6||96||Privileging Professional Insider Trading
affiliation not provided to SSRN
Date posted to database: 18 Jul 2016 [5th last week]
|7||96||How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan andPeter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016 [6th last week]
|8||94||The Place for Neuroscience in Criminal Law
Deborah W. Denno
Fordham Law School
Date posted to database: 18 Jul 2016 [7th last week]
|9||80||Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters
Craig Forcese and Leah Sherriff
University of Ottawa - Common Law Section and Independent
Date posted to database: 29 Aug 2016 [10th last week]
|10||79||Why Lenity Has No Place in the Income Tax Laws
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [8th last week]
Susan A. Bandes (DePaul University - College of Law) has posted What Executioners Can -- And Cannot -- Teach Us About the Death Penalty (Criminal Justice Ethics, Volume 35, Issue 3, 2016, Forthcoming) on SSRN. Here is the abstract:
Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove. The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that the better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.
Yxta Maya Murray (Loyola Law School Los Angeles) has posted 'We Just Looked at Them as Ordinary People Like We Were:' The Legal Gaze and Women's Bodies (Columbia Journal of Gender and Law, Forthcoming) on SSRN. Here is the abstract:
This article analyzes the struggles of two female musicians who were caught in the criminal justice system because they revealed their bodies. Using archival research and personal interviews, I tell the story of punk rocker Wendy O. Williams’ 1981-1984 obscenity and police brutality court battles. I also relay the life of Lorien Bourne, a disabled and lesbian rock-n-roller who was charged with disorderly conduct in Bowling Green, Ohio in 2006. I examine how legal actors, including courts and jurors, viewed Williams and Bourne using classed, able-ist, sexist, and homophobic optics. In so doing, I extend my previous work on legal “gazes,” or what I have called the legal practice of “peering.” I end the article by looking to the women’s art and lives as correctives to oppressive manners of legal seeing.
The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy easily convert into damning evidence admissible in court.
This Article reveals a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet.
Thomas P. Crocker (University of South Carolina School of Law) has posted Order, Technology, and the Constitutional Meanings of Criminal Procedure (Journal of Criminal Law and Criminology, Vol. 103, No. 3, 2013) on SSRN. Here is the abstract:
This Article explores both how, and why it matters that, current Fourth Amendment doctrine, whether articulated in terms of property rights or expectations of privacy, facilitates background order-maintenance conceptions of police practice. Order maintenance becomes a more powerful, and an even more problematic, priority when it comes to electronic monitoring. Current doctrine often focuses on the personal interactions between citizens and police on the community street. Police officers are expected to respond to visible displays of social disorder. Visibility is therefore key to the broken windows approach. But technology alters what is visible. With more powerful tools that can make visible more subtle or hidden forms of disorder, the model of street-level police interaction changes as well. Since extended secret surveillance of a person’s movements on public streets or electronic monitoring of a person’s activities as revealed to third parties could each be conducted to ferret out the social disorder lurking beneath sequentially quotidian movements and activities, larger patterns of disorder indiscernible to the episodic street encounter can now be made visible.
Current constitutional doctrine, designed for the street encounter, provides scant barriers to the “permeating” police practices that follow from using technology to make visible this less easily discerned social disorder.
Matthew R. Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Owen D. Jones and Rene Marois (Vanderbilt University - Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, University of Minnesota Law School, University of California, Irvine School of Law, Vanderbilt University - Law School & Dept. of Biological Sciences and Vanderbilt University - Department of Psychology Center for Integrative and Cognitive Neuroscience) have posted Parsing the Behavioral and Brain Mechanisms of Third-Party Punishment (Journal of Neuroscience. Vol. 36, 9420-9434) on SSRN. Here is the abstract:
The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood.
Using a brain-scanning technique known as functional magnetic resonance imaging (fMRI), we implemented a novel experimental design to functionally dissociate the mechanisms underlying evaluation, integration, and decision. This work revealed that multiple parts of the brain – some analytic, some subconscious or emotional – work in a systematic pattern to decide blameworthiness, assess harms, integrate those two decisions, and then ultimately select how a person should be punished.
Monu Singh Bedi (DePaul University College of Law) has posted The Asymmetry of Crimes By and Against Police Officers (Duke Law Journal Online, (2016) Forthcoming) on SSRN. Here is the abstract:
Crimes by and against police officers during the performance of their duties are treated differently. If a police officer harms a citizen, the officer is subject to regular assault or homicide charges, whereas if a citizen harms a police officer, the citizen is subject to aggravated assault or homicide charges. The upcharge stems from the fact that the citizen interfered with police activity. No one would dispute that states have a special interest in protecting this state sanctioned behavior. But don’t they also have an equal interest in deterring its abuse through commensurate charges?
|1||447||Student Surveillance, Racial Inequalities, and Implicit Racial Bias
Jason P. Nance
University of Florida Levin College of Law
Date posted to database: 29 Aug 2016
|2||303||The Downstream Consequences of Misdemeanor Pretrial Detention
Paul S. Heaton, Sandra G. Mayson and Megan Stevenson
University of Pennsylvania Law School, University of Pennsylvania Law School and University of Pennsylvania Law School
Date posted to database: 17 Jul 2016
|3||208||What Lurks Below Beckles
Leah M Litman and Shakeer Rahman
University of California, Irvine School of Law and Independent
Date posted to database: 28 Aug 2016
|4||200||The Effect of Legislation on Fourth Amendment Interpretation
Orin S. Kerr
The George Washington University Law School
Date posted to database: 8 Aug 2016 [8th last week]
|5||196||A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels
Brian M. Murray
Temple University, Beasley School of Law
Date posted to database: 27 Jul 2016 [4th last week]
|6||175||The Drug Court Paradigm
Indiana University Maurer School of Law
Date posted to database: 12 Aug 2016 [5th last week]
|7||171||Importance of State Law in Police Reform
Roger L. Goldman
Saint Louis University - School of Law
Date posted to database: 4 Aug 2016
|8||171||Profit-Driven Prosecution and the Competitive Bidding Process
Brigham Young University - J. Reuben Clark Law School
Date posted to database: 12 Aug 2016 [6th last week]
|9||149||Moonlighting: The Private Employment of Off-Duty Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [10th last week]
|10||147||Indians, Race, and Criminal Jurisdiction in Indian Country
Alexander Tallchief Skibine
University of Utah - S.J. Quinney College of Law
Date posted to database: 12 Aug 2016 [9th last week]
Friday, September 16, 2016
For some time patent law has been criticized for a flood of bad patents. Patents of questionable validity are being issued with broad often-nebulous boundaries. A majority of the blame for these bad patents has fallen on the shoulders of the Patent and Trademark Office (PTO). Bad patents exist, so the argument goes, because the PTO has improperly issued them. In response the PTO has launched a major initiative to improve patent quality. Our singular focus on the PTO though threatens to overlook the other major player responsible for patent quality – patent applicants. Currently patent applicants are not seen as having any particular duty to seek only good patents. Today applicants can seek excessively broad claims if they want to. It is the PTO’s job to police against such excessive claims. This article shows this prevalent practice of overclaiming is dangerously mistaken. Though not generally appreciated, the patent statute includes powerful features that put a significant duty on applicants and their patent attorneys to file only properly sized patent claims. As shown, applicants have a duty to file claims that do not exceed their invention. And though it likely comes as a surprise to much of the patent bar, that duty is enforced by criminal sanctions. Simply put, willful overclaiming is criminal; it is a felony.
Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System on SSRN. Here is the abstract:
The constitutional pardon power has generated more controversy than mercy over the past three decades. Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards. While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy. Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process. For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility. This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.
Evan D. Anderson and Scott Burris (Center for Public Health Initiatives, University of Pennsylvania and Temple University - James E. Beasley School of Law) have posted Policing and Public Health: Not Quite the Right Analogy (Journal of Policing & Society, (fall 2016), Forthcoming) on SSRN. Here is the abstract:
Policing matters to public health, and it makes sense to consider how greater cooperation and even integration between health and law enforcement systems might lead to new and better approaches to chronic problems at the intersection of health and security. The fact that policing is important to public health does not mean, however, that police work is 'like' public health work, let alone that police agencies and public health agencies share important features in culture and methods that might support better alignment. It may be more useful to focus on the similarities between policing and medicine. Medicine and policing devote most of their energies to addressing the acute needs of individuals, and have relatively little capacity to change upstream structural factors. Each is source of considerable incidental harm. Past and current efforts to align public health and medicine provide useful insights into work at the intersection of policing and public health. In this paper, we pursue analogies between policing and patient-centered care, preventing medical error, reducing over-utilization, and focusing care on high-risk patients. We conclude with an exploration of what a 'culture of health' would add to current police culture.
Thursday, September 15, 2016
W. Robert Thomas (Cleary Gottlieb Steen & Hamilton LLP) has posted When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now on SSRN. Here is the abstract:
The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense.
Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution.
Jennifer L. Skeem, Patrick Kennealy, Joseph Tatar, Isaias Hernandez and Felicia Keith (University of California, Berkeley, Government of the State of Texas - Travis County Community Justice Services (TCCJS), Wisconsin Department of Corrections, Parajo Valley Unified School District and Uniformed Services University of the Health Sciences) have posted How Well Do Juvenile Risk Assessments Measure Factors to Target in Treatment? Examining Construct Validity (Forthcoming in Skeem, J., Kennealy, P., Tatar, J., Hernandez, I., & Keith, F., Construct Validity) on SSRN. Here is the abstract:
There has been a surge of interest in using one type of risk assessment instrument to tailor treatment to juveniles to reduce recidivism. Unlike prediction-oriented instruments, these reduction-oriented instruments explicitly measure variable risk factors as “needs” to be addressed in treatment. There is little evidence, however, that the instruments accurately measure specific risk factors. Based on a sample of 237 serious juvenile offenders (M age=18, SD=1.5), we tested whether California Youth Assessment Inventory (CA-YASI) scores validly assess the risk factors they purport to assess. Youth were assessed by practitioners with good interrater reliability on the CA-YASI, and by research staff on a battery of validated, multi-method criterion measures of target constructs. We meta-analytically tested whether each CA-YASI risk domain score (e.g., Attitudes) related more strongly to scores on convergent measures of theoretically similar constructs (e.g., criminal thinking styles) than to scores on discriminant measures of theoretically distinct constructs (e.g., intelligence, somatization, pubertal status). CA-YASI risk domain scores with the strongest validity support were those that assess criminal history. The only variable CA-YASI risk domain score that correlated more strongly with convergent (Zr=.35) than discriminant (Zr=.07) measures was Substance Use. There was little support for the construct validity of the remaining six variable CA-YASI risk domains — including those that ostensibly assess strong risk factors (e.g., “Attitudes,” “Social Influence”). Our findings emphasize the need to test the construct validity of reduction-oriented instruments — and refine instruments to precisely measure their targets so they can truly inform risk reduction.
Eyal Zamir, Elisha Harlev and Ilana Ritov (Hebrew University of Jerusalem - Faculty of Law, Hebrew University of Jerusalem, School of Law, Students and Hebrew University of Jerusalem - School of Education) have posted New Evidence About Circumstantial Evidence (Law & Psychology Review, Forthcoming) on SSRN. Here is the abstract:
Judicial fact-finders are commonly instructed to determine the reliability and weight of any evidence, be it direct or circumstantial, without prejudice to the latter. Nonetheless, studies have shown that people are reluctant to impose liability based on circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Proposed explanations for this reluctance have focused on factors such as the statistical nature of some circumstantial evidence and the tendency of fact-finders to assign low subjective probabilities to circumstantial evidence. However, a recent experimental study has demonstrated that even when such factors are controlled for, the disinclination to impose liability based on non-direct evidence — dubbed the anti-inference bias — remains.
The present Article describes seven new experiments that explore the scope and resilience of the anti-inference bias.
Wednesday, September 14, 2016
The Post Conviction Relief Act ("PCRA" or "the Act") provides a procedure for defendants to collaterally challenge their conviction or sentence. It is the sole means of obtaining state collateral relief. The PCRA has been broadly interpreted as creating a unified statutory framework for reviewing claims that were traditionally cognizable in state habeas corpus. The Act permits defendants in custody to seek relief when the conviction or sentence results in one or more of the Act's enumerated errors or defects and when the claimed error has not been waived or previously litigated on direct appeal or in a previous PCRA petition. Subject to several narrow exceptions, a petition under the Act must be filed within one year of the date the defendant's judgment of sentence becomes final. This article reports on a number of recent decisions of the Pennsylvania Supreme and Superior Court construing provisions of the Act.
Shachar Eldar and Elkana Laist (Ono Academic College Faculty of Law and Government of the State of Israel) have posted The Irrelevance of Motive and the Rule of Law (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
One of the maxims of criminal law orthodoxy states that a defendant’s motive for offending, be it good or bad, should have no weight in assessing his or her criminal liability – although it may rightfully bear on the punishment imposed. Known as the “irrelevance of motive principle”, this idea owes much of its popular stature in legal thinking to arguments that draw on the notion of the rule of law. It is said that allowing defendants’ motives to generate or negate their criminal liability would undermine the state’s authority in defining the contours of crime.
The article identifies and critically examines three streams of such arguments, and these in turn lead to three findings.
Gavin R. Tisdale (University of Connecticut, School of Law, Students) has posted A New Look at Constitutional Errors in a Criminal Trial (Connecticut Law Review, Vol. 48, No. 5, July 2016) on SSRN. Here is the abstract:
On appeal, an essential question in reviewing a constitutional error in a criminal trial is whether the error was a trial error or a structural error. The Supreme Court’s current framework for answering this question has led to widespread confusion and misapplication in both the courts and scholarship. In practice, that question — whether an error was trial error or structural error — can lead to antithetical results: structural error generally results in a new trial for the defendant without any showing of prejudice while trial error only requires the prosecution to prove that the error was harmless beyond a reasonable doubt. Given the contrast between these two results, it is necessary that the framework under which courts evaluate constitutional errors in a criminal trial uphold the purposes of appellate review.
Humans and the effects of their activities now substantially influence the entire planet, including its oceans, its climate, its atmosphere, and its lands. Human influence has become so large that earth scientists have debated whether to identify a new geologic time period, the Anthropocene. The Anthropocene will surely have substantial effects on human societies and economies, and law will be no exception. The Anthropocene is the product of the aggregation of millions and billions of individual human actions, and human effects on global systems are exponentially increasing because of growing technology and population. Humans will inevitably respond to the Anthropocene, if only to adapt to the major changes in oceans, climate, biodiversity, and other critical functions that human society depends upon. Human responses to the Anthropocene will ineluctably lead to greater government involvement in a wide range of human activities, and constant updating of government laws and regulations to respond to new challenges. The result will be pressures on a wide range of legal doctrines in public and private law, including torts, property, constitutional law, administrative law, and criminal law.
Alison J. Lynch and Michael L. Perlin (Disability Rights New York and New York Law School) have posted 'Life's Hurried Tangled Road': A Therapeutic Jurisprudence Analysis of Why Dedicated Counsel Must Be Assigned to Represent Persons with Mental Disabilities in Community Settings on SSRN. Here is the abstract:
Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. Wainwright and Argersinger v. Hamlin, and in state statutes and court cases implementing these US Supreme Court decisions. Such representation would best fulfill the Supreme Court’s goal of “restor[ing] constitutional principles established to achieve a fair system of justice” and ensuring that “every defendant stands equal before the law,” (Gideon, 372 U.S. 335, 344 (1963)) and would make it far less likely that this population would end up in jail or prison on minor, nuisance charges, as is so frequently the case today.
Myles Frederick McLellan (Algoma University) has posted Habeas Corpus and Innocence: A Remedy for the Wrongly Convicted on SSRN. Here is the abstract:
Once a conviction takes place, in the event that proof of innocence comes to light after all appeal routes have been exhausted, the wrongly convicted will have little opportunity to get that evidence before a court and will remain imprisoned. The elusive silver bullet of exculpatory DNA evidence may well give support to the post-appellate extraordinary remedy of ministerial review pursuant to.696.1 of the Criminal Code but evidence relative to the far more frequent incidents of mistaken eyewitness identification, false confessions, perjured jailhouse informant testimony or otherwise faulty forensic science will very likely never see the light of day in the criminal justice process. Therefore, when all else has failed, this paper proposes that “The Great Writ of Liberty” of habeas corpus as a fundamental error conviction device may well be the last best hope to get evidence of innocence before a court for the purposes of exoneration.