Saturday, June 27, 2015
R. A. Duff (University of Minnesota Law School) has posted Legal Moralism and Public Wrongs (Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S Moore, K. K. Ferzan & S. Morse (eds), Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
After sketching the main features of Moore’s version of legal moralism, and its connection to the type of retributivism that he espouses, I note its expansiveness, both as to the kinds of wrong and as to the range of agents that we have in principle reason to criminalise. I argue that we should instead ground a more modest legal moralism in the traditional idea of crimes as public wrongs and (in response to Moore’s criticisms of that idea) that we can begin to give it substantial content by beginning with the idea of the public realm that any polity must determine for itself; the way in which codes of professional ethics are developed on the basis of an account of the proper scope of the profession provides a useful illustration of this method.
Friday, June 26, 2015
Ahson Azmat has posted What Mistake of Law Just Might Be: Legal Moralism, Liberal Positivism, and the Mistake of Law Doctrine (18 New. Crim. L. Rev. 3 (2015)) on SSRN. Here is the abstract:
This Article examines and evaluates a distinctive, increasingly popular account of the Mistake of Law doctrine. A growing number of legal theorists have criticized the traditional, positivist interpretation of the doctrine; legal moralists in particular have argued that the traditional interpretation is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as well as a negligence regime might, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism of Justice Holmes. It concludes that the modal claims of legal moralists cannot be vindicated based on the arguments employed to defend them.
Geraldine Szott Moohr (University of Houston Law Center) has posted White Collar Movies and Why They Matter (Texas Review of Entertainment & Sports Law (2015 Forthcoming)) on SSRN. Here is the abstract:
This article discusses how movies about white collar crimes can influence public perception of such crimes and the criminal justice system that enforces them. A change in public attitudes can ultimately affect not only the popular culture, from which such movies spring, but also popular understanding of legal culture. To evaluate how movies matter, the article reviews the basic tenets of federal white collar criminal law and presents the social theory that traces the relation between entertaining films and the popular culture. This relation is examined through an analysis of four films (Wall Street, Boiler Room, The Wolf of Wall Street, and Margin Call) that contrasts individual culpability and sole responsibility, individual and firm responsibility, and systemic problems for which no individual or firm bears responsibility. Finally, the issues raised by the films are related to current issues in addressing white collar frauds.
Donna Coker and Ahjane Macquoid (University of Miami School of Law and Independent) have posted Alternative U.S. Responses to Intimate Partner Violence (in COMPARATIVE APPROACHES TO DOMESTIC VIOLENCE (Rashmi Goel and Leigh Goodmark eds. 2015) Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
The crime-centric approaches that characterize the dominant U.S. response to intimate partner violence (IPV) fail to adequately address the structural inequalities that create and maintain IPV and, simultaneously, often increases state control of people who are structurally vulnerable – poor women and men, particularly women and men of color, LGBT individuals and undocumented immigrants.
But the dominant picture is not the whole picture. There are service providers and activists who labor to provide alternative programs and approaches.
Sarah French Russell (Quinnipiac University School of Law) has posted Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights (Boston College Law Review, Vol. 56, p. 553, 2015) on SSRN. Here is the abstract:
Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.” Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts. Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination?
Thursday, June 25, 2015
Privacy campaigners and open source developers are up in arms over the secret installing of Google software which is capable of listening in on conversations held in front of a computer.
First spotted by open source developers, the Chromium browser – the open source basis for Google’s Chrome – began remotely installing audio-snooping code that was capable of listening to users.
It was designed to support Chrome’s new “OK, Google” hotword detection – which makes the computer respond when you talk to it – but was installed, and, some users have claimed, it is activated on computers without their permission.
Jurist has the story. In part:
The French Parliament [official website] on Wednesday adopted a surveillance bill[materials, in French] that would give French intelligence services the authority to monitor Internet use metadata. It isreported [AP report] that the bill also allows for court ordered surveillance of suspects homes and cars utilizing beacons and tracking devices.
Ashley Hinkle has posted Every Consumer Knows How to Run a Business: The Dangerous Assumptions Made When a Prior Possession Conviction is Admitted as Evidence in a Case Involving Commercial Drug Activity (35 Northern Illinois University Law Review 401 (2015)) on SSRN. Here is the abstract:
This Comment provides a discussion on Federal Rule of Evidence 404(b), which for the past few decades has allowed federal prosecutors to use instances of prior possession to fulfill elements of a different crime involving commercial drug activity. This evidence has been allowed in a variety of circumstances among the federal circuits, regardless of proximity in time, relatedness, or similarity between the previous instance of possession and the new commercial drug charge at hand. This Comment contains an in-depth analysis of the evidentiary rule, procedural requirements, case law, and the present circuit split on this issue. A recent decision by the Third Circuit has shed light on this problem and has provided a framework that suggests stricter guidelines should be used when instances of prior possession are presented as evidence to fulfill elements of a commercial drug crime. Lastly, this Comment presents an argument that emphasizes the need for a uniform approach by either requiring a greater standard of relevancy or by excluding evidence of prior possession in cases concerning commercial drug activity when the events are substantially unrelated.
Italia Patti has posted Maybe Once, Maybe Twice: Using the Rule of Lenity to Determine Whether 18 USC § 924(c) Defines One Crime or Two (University of Chicago Law Review, Vol. 81, No. 1261, 2014) on SSRN. Here is the abstract:
Typically courts look to the rule of lenity when determining the breadth of criminal statutes, as the rule of lenity instructs courts to define crimes narrowly. The rule of lenity also instructs courts to construe statutes so they will lead to less severe sentences. Invoking the rule of lenity in reference to a statue's impact on sentencing, not just crime definition, can help courts determine the number of crimes an ambiguous statute defines. Following this method, this Comment argues that 18 U.S.C. § 924(c) defines a single crime that can be committed two different ways, not two separate crimes.
Alex Stevens , Martin Ridout , Monica Barratt , Simon Lenton and Adam Winstock (University of Kent , University of Kent , UNSW Australia , Curtin University and Global Drug Survey) has posted The Potential Effects of Policy Changes on Drug Markets in the UK and Australia: Estimates from a Survey of Drug Users (7th Annual Conference of the International Society for the Study of Drug Policy, Bogotá, May 2013) on SSRN. Here is the abstract:
One of the barriers to drug policy analysis and reform is uncertainty as to the effects of possible policy changes (Shanahan & Ritter, 2012). This paper will use datafrom the Global Drug Survey to examine potential effects of policy changes in both the UK and Australian drug markets, based on responses on intended behaviour changes from a sample of over 6,500 self-reported drug users (aged over 16) in each country.
The Global Drug Survey is an independent online survey that accesses large samples by collaborating with global media partners such as The Guardian, Mixmag and Gay Times in the UK and Fairfax Media in Australia. It asks respondents to report their drug use and includes questions on how people would change their behaviours in response to three potential policy scenarios which are based on: decriminalisation; legalisation of possession; or legalisation with sale by government monopoly.
Wednesday, June 24, 2015
Orin Kerr has this post at The Volokh Conspiracy discussing the Supreme Court's recent analogue drug case. In part:
The more the element is the core of the crime, the more it seems like the norm that ignorance of the law is no excuse should apply. On the other hand, the more the legal question raised by the element is distinct from the definition of the crime, the more it seems like knowledge of a legal status can be incorporated without running afoul of that principle. And from a policy perspective, the more cases of fair uncertainty as to legality you have, the more desirable it becomes to incorporate knowledge of illegality as an element. That surely has an influence on interpretation, even if is not directly relevant doctrinally.
The article is at The New York Times:
Law enforcement officials well versed in prison breaks and manhunts considered the pros and cons of two escapees sticking together on the run.
“It’s harder to hide two people,” said Sheriff Timothy Whitcomb of Cattaraugus County, N.Y., whose office has participated in past manhunts. “It’s harder to conceal two people. It’s harder to feed two people.”
. . .
But there are advantages, beginning with the ability to sleep in shifts.
“There’s the old adage that there’s strength in numbers,” said John F. Clark, a retired chief inspector with the United States Marshals Service. “They can watch each other’s backs. If they decide they want to do a robbery, a carjacking, whatever that may be to further their flight, two of them are stronger, more intimidating, than just one.”
Patrick Daley (Western University) has posted Civil Asset Forfeiture: An Economic Analysis of Ontario and British Columbia (Western Journal of Legal Studies, Vol. 5, No. 3, 2015) on SSRN. Here is the abstract:
This paper compares and analyzes the incentive structure of Ontario and British Columbia’s civil asset forfeiture regimes. Part one surveys the American civil forfeiture experience to draw out theoretical considerations from American academia and inform a discussion of Canadian law. Part two compares the Ontario and British Columbia civil forfeiture regimes and identifies institutional incentives and barriers embedded in the framework of the forfeiture regimes in each province. Part three uses empirical data to explain how Ontario and British Columbia’s incentive structures affect civil forfeiture’s use. The paper argues there is an optimal allocation of resources towards the use of civil forfeiture, and that such optimization is ultimately influenced by the province’s incentive structure. Finally, part four undertakes a discussion of the potential effects that the inefficient use of civil forfeiture may have on the broader economy.
Racial profiling in law enforcement is a contentious matter, particularly in light of U.S. police-citizen race tensions. The racial profiling debate has not been settled. Racial profiling proponents view it as a tool to effectively uncover criminal activity among certain racial groups. Critics find that racial profiling perpetuates racial stigmas and is largely inefficient as a policing tool. This article explores the ongoing debate and offers an overview of the Canadian judicial experience with racial profiling. The author proposes a middle-ground solution where racial profiling may be used under certain constraints imposed on law enforcement. The author suggests that the Crown provide justificatory evidence for the use of racial profiling when it is raised as a defence by the accused.
Donna Coker (University of Miami School of Law) has posted 'Stand Your Ground' in Context: Race, Gender, and Politics (University of Miami Law Review, Vol. 68, p. 943, Summer 2014) on SSRN. Here is the abstract:
This introduction to a special volume on Florida’s “Stand Your Ground” law highlights the importance of race, class, and gender to understanding the political support for SYG and the law’s impact.
Shani King , Rachel Barr and Jennifer Woolard (University of Florida, Levin College of Law , Georgetown University and Georgetown University) has posted Cost-Effective Juvenile Justice Reform: Lessons from the Just Beginning 'Baby Elmo' Teen Parenting Program (North Carolina Law Review, Vol. 93, p. 1381, 2015, Forthcoming) on SSRN. Here is the abstract:
This Article reviews the literature describing the rise of mass incarceration and its effects on individuals, families, and communities. The Article then describes the Just Beginning “Baby Elmo” Program, a cost-effective, sustainable parental instruction and child visitation intervention created for use with incarcerated teen parents. This intervention is designed to increase the quality of interaction between parent and child, increasing the likelihood that the teen father and child will form a positive relationship and maintain that relationship after release from detention — thereby increasing the child’s resilience and reducing the risk of recidivism for the teen father. The “Baby Elmo” Program is one of a number of intervention programs that attempt to address the significant and debilitating effects of mass incarceration by improving family relationships, school performance, and in-detention compliance, hopefully reducing recidivism and facilitating reentry of incarcerated youth into their families and communities.
Most Internet users are familiar with trolling — aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. Less familiar but far more serious is the way some use networked technologies to target real people, subjecting them, by name and address, to vicious, often terrifying, online abuse. In an in-depth investigation of a problem that is too often trivialized by lawmakers and the media, Danielle Keats Citron exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. A refutation of those who claim that these attacks are legal, or at least impossible to stop, Hate Crimes in Cyberspace (Harvard University Press 2014) reveals the serious emotional, professional, and financial harms incurred by victims.
Tuesday, June 23, 2015
Seth Mayer and Italia Patti (Auburn University and West Virginia University College of Law) have posted Beyond the Numbers: Toward a Moral Vision for Criminal Justice Reform (Drake Law Review Discourse, Forthcoming) on SSRN. Here is the abstract:
The diverse coalition of activists trying to cut the prison population has thus far failed to articulate a coherent moral foundation for criminal justice reform. Since the various constituents of this coalition support reform for different reasons, it may seem savvy to avoid conversation about moral questions. We argue, however, that failing to work toward developing a moral basis for reform puts the coalition at risk of repeating the failures of the sentencing reform movement of the 1970s and 1980s. This initially promising movement culminated in the passage of the widely disliked and deeply flawed United States Sentencing Guidelines. We lay out and analyze the downsides of avoiding moral discourse in criminal justice reform movements and argue for more collaboration and dialogue between moral thinkers and activists.
Rena I. Steinzor (University of Maryland Francis King Carey School of Law) has posted (Still) 'Unsafe at Any Speed': Why Not Jail for Auto Executives? on SSRN. Here is the abstract: