CrimProf Blog

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

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Sunday, March 22, 2015

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 1,741 Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence 
Kent Roach and Craig Forcese 
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section 
Date posted to database: 5 Feb 2015 
2 485 California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State 
Marina FisherNathaniel MillerLindsay Walter andJeffrey Selbin 
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law 
Date posted to database: 4 Feb 2015 
3 358 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 [4th last week]
4 197 The Economics of Corruption in Sports: The Special Case of Doping 
Eugen Dimant and Christian Deutscher 
University of Paderborn - Center for International Economics and Bielefeld University 
Date posted to database: 21 Jan 2015 [new to top ten]
5 184 Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005 
Atif R. Mian and Amir Sufi 
Princeton University - Department of Economics and University of Chicago - Booth School of Business 
Date posted to database: 8 Feb 2015 
6 176 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn JohnsonPaul Marcus andEmily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 
7 147 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Independent 
Date posted to database: 25 Jan 2015 [9th last week]
8 127 Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law 
David B. Wexler 
University of Puerto Rico - School of Law 
Date posted to database: 15 Feb 2015 [new to top ten]
9 125 Back to the Future: The Influence of Criminal History on Risk Assessment
Melissa Hamilton 
University of Houston Law Center 
Date posted to database: 27 Jan 2015 [new to top ten]
10 148 A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges 
Mark W. Bennett 
U.S. District Court (Northern District of Iowa) 
Date posted to database: 2 Mar 2015 

March 22, 2015 | Permalink | Comments (0)

Saturday, March 21, 2015

Blitz et al. on Regulating Drones

Marc Jonathan Blitz James L Grimsley Stephen E. Henderson and Joseph T. Thai (Oklahoma City University , University of Oklahoma - Norman Campus , University of Oklahoma College of Law and University of Oklahoma - College of Law) has posted Regulating Drones Under the First and Fourth Amendments (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative to understand the constitutional restraints on public flight and constitutional protections afforded private flight. 

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March 21, 2015 | Permalink | Comments (0)

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Monday

  • City and County of San Francisco v. Sheehan: (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and (2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within. (Breyer, J., recused.)

March 21, 2015 | Permalink | Comments (0)

Levmore & Porat on Rethinking Threats

Saul Levmore and Ariel Porat (University of Chicago Law School and Tel Aviv University) have posted Rethinking Threats on SSRN. Here is the abstract:

Threats are not merely the dark side of promises. They impose costs on those who receive them, and are likely to be particularly destructive when credible. This Article develops the factors that make for credibility in criminal, international, and other contexts. The credibility of a threat depends on the net cost of execution, subtleties regarding repeat play, and the calculus of secondary credibility – the likelihood that a threat will be carried out by the threatener or repeated by another party if the victim capitulates to the first. It then turns to situations in which a threatener can create credibility by dividing a threat into stages. A threat is often more credible if its execution has begun, so that the cost of completion is modest and now lower than the direct benefit expected from capitulation. Law itself, though designed to discourage threats and their execution, can perversely contribute to threat-making by constituting just such a sunk cost, or first stage of a process. The implication is that in many situations law ought to focus its power on the final stage of a wrongdoer’s plan.

March 21, 2015 | Permalink | Comments (0)

Friday, March 20, 2015

Osler on Law & Tactics for a Market-Reality Narcotics Policy

Osler markMark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Law & Tactics for a Market-Reality Narcotics Policy (Harvard Journal on Legislation, 2015) on SSRN. Here is the abstract:

The War on Drugs seems to be ending, leading to a crucial question: What comes next? Legalization of narcotics (marijuana aside) is unlikely, and the pursuit of broad incarceration to create deterrence or incapacitation has been largely disavowed. However, drug use continues to be a profound social problem that must be confronted. This article argues for the aggressive use of asset forfeiture to capture cash flow to core sources in order to systemically disrupt narcotics networks. Importantly, such a project would steer police efforts away from capturing people, drugs, or the profits retained by drug dealers and instead target the lifeblood of the narcotics business, which is proceeds flowing back to mass producers, importers, and major wholesalers of drugs. This tactic would address the continuing narcotics problem without mass incarceration or the problems associated with seizing small amounts of profit through forfeitures. Fortunately, the necessary tools are already embedded in existing federal statutes; all that is left to do is to use them wisely in a new and more effective way.

March 20, 2015 | Permalink | Comments (1)

Broughton on Capital Punishment

Broughton j richardJ. Richard Broughton (University of Detroit Mercy School of Law) has posted Jones, Lackey, and Teague on SSRN. Here is the abstract:

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine.

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March 20, 2015 | Permalink | Comments (0)

Roth on The Divisibility of Crime

Roth jessicaJessica A Roth (Yeshiva University - Benjamin N. Cardozo School of Law) has posted The Divisibility of Crime (64 Duke Law Journal Online (February 2015) pp. 95-119) on SSRN. Here is the abstract:

Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions. 

This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly.

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March 20, 2015 | Permalink | Comments (0)

Thursday, March 19, 2015

Price on Law Enforcement as a Political Question

Zachary S. Price (University of California Hastings College of the Law) has posted Law Enforcement as Political Question on SSRN. Here is the abstract:

The scope of judicial authority to review executive enforcement choices has long befuddled courts, producing a confused and incoherent body of case law that exempts most (but not all) enforcement decisions from judicial review. This incoherence has become an urgent problem, however, as the executive branch appears increasingly inclined to charge through the door opened by limitations on judicial review of enforcement. At the level of national policy, several recent executive actions now subject to litigation — particularly the Department of Homeland Security’s efforts to halt removal of certain broad categories of undocumented immigrants — have depended on broad theories of executive non-enforcement authority. Meanwhile, at the ground level of federal law enforcement, federal prosecutors have aggressively used criminal enforcement discretion to advance regulatory goals through so-called “deferred prosecution agreements” that involve neither a conviction nor even a plea agreement. 

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March 19, 2015 | Permalink | Comments (0)

Goel et al. on Racial Disparities in New York City's Stop-and-Frisks

Sharad Goel Justin M. Rao and Ravi Shroff (Stanford University , Microsoft Research and New York University (NYU)) have posted Precinct or Prejudice? Understanding Racial Disparities in New York City's Stop-and-Frisk Policy on SSRN. Here is the abstract:

Recent studies have examined racial disparities in stop-and-frisk, a widely employed but controversial policing tactic. The statistical evidence, though, has been limited and contradictory. We investigate by analyzing three million stops in New York City over five years, focusing on cases where officers suspected the stopped individual of criminal possession of a weapon (CPW). For each CPW stop, we estimate the ex-ante probability that the detained suspect would have a weapon. We find that in 44% of cases, the likelihood of finding a weapon was less than 1%, raising concerns that the legal requirement of "reasonable suspicion" was often not met. We further find that blacks and Hispanics were disproportionately stopped in these low hit rate contexts, a phenomenon largely attributable to lower thresholds for stopping individuals in high-crime, predominately minority areas, particularly public housing. Even after adjusting for location effects, however, we find that stopped blacks and Hispanics were still less likely than similarly situated whites to possess weapons, indicative of racial bias in stop decisions. We demonstrate that by conducting only the 6% ex-ante highest hit rate stops, one can both recover the majority of weapons and mitigate racial disparities. Finally, we develop stop heuristics that can be implemented as a simple scoring rule, and have comparable accuracy to our full statistical models.

March 19, 2015 | Permalink | Comments (0)

Mazzone & Woock on Federalism as Docket Control

Jason Mazzone and Carl Emery Woock (University of Illinois College of Law and University of Illinois College of Law) have posted Federalism as Docket Control on SSRN. Here is the abstract:

On the twentieth anniversary of United States v. Lopez (1995), this Article revisits the Rehnquist Court’s federalism revolution. Much of what has been said about the federalism cases of the Rehnquist Court misses a fundamental aspect of those decisions — one with profound implications for making sense not just of the Rehnquist era but a large component of the Supreme Court’s work since the earliest days of the Republic. Focusing particularly on Lopez and the follow-up case of United States v. Morrison (2000), the Article offers a new perspective on what the Rehnquist Court was up to. We set forth a practical reading of Lopez and Morrison as cases about docket control. In both cases, we suggest, the Court was concerned with shielding the federal district courts from ever-expanding criminal and civil cases that resulted from new federal laws. The Article shows that from the Court’s perspective, docket control was not simply about keeping the caseloads of the district courts at a manageable level. Instead, quite apart from numbers, the Court was concerned with the particular types of cases Congress wanted the district courts to handle. Congress, the Justices feared, was undermining the prestige of the federal judiciary by blurring the distinction between state and federal judges and turning federal judges into petty magistrates.

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March 19, 2015 | Permalink | Comments (0)

Fabricant & Carrington on Forensic Science's Evolution

M. Chris Fabricant and William Tucker Carrington (Innocence Project, Inc. and University of Mississippi - School of Law) have posted The Shifted Paradigm: Forensic Sciences's Overdue Evolution from Magic to Law on SSRN. Here is the abstract:

A decade ago a controversial article in Science Magazine predicted a coming “paradigm shift” that would push forensic sciences toward fundamental change as the result of “[l]egal and scientific forces . . . converging to drive an emerging skepticism about the claims of the traditional forensic individualization sciences.” This article argues that the predicted paradigm shift has occurred. We support our thesis through a deconstruction of the jurisprudence of two of the forensic disciplines implicated in numerous wrongful convictions – forensic odontology (bite mark analysis) and forensic hair microscopy – and an examination of a confluence of unprecedented events currently altering the landscape of forensic sciences. The empirical evidence and data gathered here demonstrates that traditional forensic identification techniques, as well as the doctrines supporting them, are ultimately no more than a house of cards built on unvalidated hypotheses and unsubstantiated or non-existent data. Several very serious consequences result, among them that state, and to some extent federal, jurisprudence that stands for the proposition that this type of evidence is admissible is objectively erroneous and must be reevaluated and effectively rejected as valid precedent; and that the long-overdue paradigm shift presents a unique ethical challenge to criminal justice professionals, one that current professional ethics regimes fail to adequately capture, even though fundamental due process norms compel the conclusion that prosecutors, defense attorneys, forensic experts and their respective governing bodies have an ethical, moral and legal duty to revisit affected cases and provide remedies. Put differently, the “path forward” for forensic sciences that the National Academy of Sciences identified in its seminal 2009 report must have a rear-view mirror.

March 19, 2015 | Permalink | Comments (0)

Wednesday, March 18, 2015

Haugh on Overcriminalization's New Harm

Todd Haugh (Indiana University - Kelley School of Business) has posted Fishy SOX: Overcriminalization's New Harm Paradigm (Vanderbilt Law Review, Vol. 68 (2015), Forthcoming) on SSRN. Here is the abstract:

The harms of overcriminalization are usually thought of in a particular way — that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization. Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal acts themselves, particularly by white collar offenders. This occurs because overcriminalization, by delegitimatizing the criminal law, fuels offender rationalizations. Rationalizations are part of the psychological process necessary for the commission of crime — they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders. Put simply, overcriminalization is fostering the very conduct it seeks to eliminate. This phenomenon is on display in the recently argued Supreme Court case Yates v. United States. Using Yates as a backdrop, this Article presents a new paradigm of overcriminalization and its harms.

March 18, 2015 | Permalink | Comments (0)

Morales on Crimes of Migration

Daniel I. Morales (DePaul University College of Law) has posted Crimes of Migration (Wake Forest Law Review, Vol. 49, No. 4, 2015) on SSRN. Here is the abstract:

Migration without permission is a crime — one prosecuted much more often than it used to be. Illegal entry and reentry, crimes of migration, are the most prosecuted federal crimes. Prisons overflow with migrants serving time for entering the United States without permission — an act that does no harm to persons or property. The obvious — and undertheorized — question is whether criminal sanctions are appropriate here. I tackle this issue in this Article, arguing that criminal law theory, political theory, and theories of punishment all cut against criminalizing acts of migration.

Consider that the incarceration meted out to punish migrants for migrating comes on top of deportation. Yet deportation perfectly reverses the crime of migration.

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March 18, 2015 | Permalink | Comments (0)

Kitchen on Latent Crime Scene DNA of Non-Suspects

Adrienne N Kitchen has posted Genetic Privacy and Latent Crime Scene DNA of Non-Suspects: How the Law Can Protect an Individual's Right to Genetic Privacy While Respecting the Government’s Important Interest in Combating Crime (The Criminal Law Bulletin, Vol. 52, Issue 2) on SSRN. Here is the abstract:

An individual has no right to privacy in genetic material they leave behind at a crime scene, even when that DNA naturally sloughs off. This absence of privacy occurs because courts consider latent crime scene DNA falls under the abandonment exception to the Fourth Amendment warrant requirement, or fail to utilize the Fourth Amendment when considering DNA collection, analysis and comparison. The Fourth Amendment requires a search or seizure to be reasonable and that it not violate an individual’s reasonable expectation of privacy: this requires that the individual exhibit a subjective expectation of privacy, and that society recognize that expectation as legitimate. 

Law enforcement officials collect all DNA at crime scenes, and that DNA eventually winds up in state and federal DNA databases, such as NDIS.

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March 18, 2015 | Permalink | Comments (0)

Lain on Mandery's A Wild Justice

Lain corinnaCorinna Lain (University of Richmond - School of Law) has posted The Highs and Lows of Wild Justice (50 Tulsa Law Review (2015 Forthcoming)) on SSRN. Here is the abstract:

This essay is a book review of Evan Mandery’s A Wild Justice: The Death and Resurrection of Capital Punishment in America, and Thane Rosenbaum’s Payback: The Case for Revenge. Mandery’s book is the story of the Supreme Court abolishing the death penalty in 1972’s Furman v. Georgia, and then legitimizing it four years later in Gregg v. Georgia. Rosenbaum’s book is an argument for revenge as an operative principle in our criminal justice system. In this review, I consider each book on its own terms. Mandery sets out to tell a story, and does it exceedingly well. Rosenbaum sets out to make an argument, and falls short by that criterion. Together, these two books — one named Wild Justice, and the other about wild justice — offer an opportunity to contemplate the retributivist viewpoint that anchors capital punishment today.

March 18, 2015 | Permalink | Comments (0)

Monday, March 16, 2015

SpearIt on Evolving Standards of Domination

SpearitSpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform (Chicago-Kent Law Review, Vol. 90, 2015) on SSRN. Here is the abstract:

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control. This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.

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March 16, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 1,650 Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence 
Kent Roach and Craig Forcese 
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section 
Date posted to database: 5 Feb 2015 
2 445 California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State 
Marina FisherNathaniel MillerLindsay Walter andJeffrey Selbin 
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law 
Date posted to database: 4 Feb 2015 
3 350 Cybersecurity: What About U.S. Policy? 
Lawrence J. Trautman 
American University 
Date posted to database: 13 Jan 2015 [5th last week]
4 335 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 
5 172 Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005 
Atif R. Mian and Amir Sufi 
Princeton University - Department of Economics and University of Chicago - Booth School of Business 
Date posted to database: 8 Feb 2015 [8th last week]
6 171 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn JohnsonPaul Marcus andEmily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 [7th last week]
7 155 Bondholders and Securities Class Actions 
James J. Park 
University of California, Los Angeles (UCLA) - School of Law 
Date posted to database: 16 Jan 2015 [9th last week]
8 151 Inevitable: Sports Gambling, State Regulation, and the Pursuit of Revenue 
Anastasios KaburakisRyan M. Rodenberg and John T. Holden 
Saint Louis University - John Cook School of Business - Department of Management, Florida State University and Florida State University 
Date posted to database: 12 Jan 2015 [new to top ten]
9 145 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Independent 
Date posted to database: 25 Jan 2015 [10th last week]
10 132 A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges 
Mark W. Bennett 
U.S. District Court (Northern District of Iowa) 
Date posted to database: 2 Mar 2015 [new to top ten]

March 16, 2015 | Permalink | Comments (0)

Saturday, March 14, 2015

Berry on Eighth Amendment Presumptions and Mass Incarceration

Berry williamWilliam W. Berry III (University of Mississippi School of Law) has posted Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration on SSRN. Here is the abstract:

The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment. 

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March 14, 2015 | Permalink | Comments (0)

Friday, March 13, 2015

Bambauer on Big Data Policing

Bambauer janeJane R. Bambauer (University of Arizona - James E. Rogers College of Law) has posted The Lost Nuance of Big Data Policing (94 Texas Law Review ___ (2015 Forthcoming)) on SSRN. Here is the abstract:

The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They fail to account for the filterability of data. Filtering can simultaneously expand law enforcement access to relevant information while reducing access to irrelevant information. Thus, existing proposals will distort criminal justice by denying police a resource that can cabin discretion, increase distributional fairness, and exculpate the wrongly accused.

This Article offers the first comprehensive analysis of third party data in police investigations by considering interests beyond privacy and security.

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March 13, 2015 | Permalink | Comments (0)

Jansen on Alternate Jurors' Participation in Deliberations

Per D. Jansen has posted Alternate Routes: Circumventing Rule 606(B) When Alternate Jurors Improperly Participate in Deliberations (Forthcoming, Criminal Law Bulletin (volume 52, March 2016)) on SSRN. Here is the abstract:

Since the Supreme Court’s landmark plain-error decision in Olano v. United States, an evidentiary issue has plagued federal criminal trials. Though forbidden by Federal Rule of Criminal Procedure 24(c), alternate jurors frequently enter deliberations with regular jurors. Despite the strong likelihood of prejudice, in most jurisdictions any testimony about the deliberations is barred by Federal Rule of Evidence 606(b). As a result, many criminal defendants are unable to present testimony or evidence that could result in a new trial free from undue prejudice. This Article examines the Constitutional context of the Olano decision as well as past and present approaches to this evidentiary issue from federal and state jurisdictions. After discussing these approaches and their various advantages and drawbacks, the Article argues that evidentiary hearings, through Remmer v. United States, provide the best answer to protecting defendants’ rights while respecting the privacy of jurors.

March 13, 2015 | Permalink | Comments (0)