Thursday, October 16, 2014
Orin Kerr has this post at The Volokh Conspiracy, excerpting and discussing the opinion. In part:
The Florida Supreme Court tried to minimize the split [from federal precedent] by limiting its opinion to real-time access rather than historical access. But it’s hard to imagine how that could make a constitutional difference. That distinction matters in the statutory context because the Stored Communications Act expressly regulates historical access but does not regulate real-time access. But I don’t see how it could matter for purposes of the Fourth Amendment question of what is a “search.”
Wendy N. Hess , Laura Furr , Kimberly Armstrong , Susan Francis and Amanda White (University of South Dakota Law School , National League of Cities , United Parents of Incarcerated Children and Youth , Public Justice Center and Public Justice Center) have posted Just Kids: Baltimore's Youth in the Adult Criminal Justice System on SSRN. Here is the abstract:
Maryland’s 20 year experiment with the "tough on crime" approach of automatically sending youth into adult criminal courts, jails and prisons for certain offenses has failed. National studies show that youth who are sent to adult facilities go on to commit more — and more violent — crimes than those who received rehabilitative services in the juvenile system. This costs taxpayers much more in the long run. Automatically charging youth as adults has been politically popular. But the data shows that when their cases are individually considered, most cases in Baltimore are dismissed or sent back to the juvenile system, raising the question of whether they should have been put in the adult system in the first place. The Just Kids Partnership — formed by the Public Justice Center, Community Law In Action, Inc., and United Parents of Incarcerated Children and Youth — spent a year conducting research, interviewing stakeholders, and following the cases of over 100 youth to understand and assess the impact of Maryland’s laws, policies and practices charging and prosecuting youth as adults. We urge Maryland policymakers to read the results of this research. Our communities deserve no less than thoughtful, data-driven policy rather than ill-informed and politically expedient rhetoric.
Wednesday, October 15, 2014
Derik T. Fettig (Hamline University School of Law) has posted Who Knew What When? A Critical Analysis of the Expanding Collective Knowledge Doctrine (University of Missouri-Kansas City Law Review, Vol. 82, No. 3, 2014) on SSRN. Here is the abstract:
This Article challenges the assumption long held by commentators and courts that the collective knowledge doctrine, sometimes called the fellow officer rule, is a common sense approach to probable cause determinations. An expansion of the doctrine by some courts to include aggregation of probable cause information among several officers, and a resulting split among the circuits, shows how its application has strayed from its original efficiency rationale. In addition, an unintended consequence of the doctrine is its use by federal agencies to shield local law enforcement officials from the existence of larger investigations, which creates a perverse incentive to withhold information among law enforcement officers and agencies. Building on the current literature, this Article argues that an ongoing circuit split over the scope of the doctrine should be resolved in favor of limiting its reach, much in the same way the Supreme Court limited the search of automobiles incident to arrest in Arizona v. Gant.
Catherine Crump has this piece at CNN.com, critiquing the use of license-plate readers. In part:
Federal funds are being spent to push this equipment out across the country, a process that often bypasses the role that traditional elected representatives once played because the police no longer need funds from the city council. And the technology is more powerful year over year as the cost of computer processing plummets and storing data becomes a trivial matter. The presumption has flipped. Police departments once asked themselves: Why keep this data? But now data storage is so cheap that they ask: Why not keep it?
Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information.
Tuesday, October 14, 2014
From TalkLeft, this critique of the prosecutor:
He needs to go back to school. Unrelenting sarcasm and mockery is not a successful cross-examination technique. He comes off as a bully. His questions are designed to express his thoughts and then present them to the witness. Witness examination is not the time to express your thoughts, you do that in closing. I've seen the judge take him to task for his overl confrontational style before in this trial.
Lyle Denniston has this post at ScotusBlog, reporting on the denials. Over the dissent of Justice Scalia, joined by Justices Ginsburg and Thomas, the Court denied review in a case where sentenced was enhanced based on the judge's determination that defendants had engaged in conduct for which the jury had acquitted them. The dissent is here. The Court also denied cert in a case raising the issue of whether the Confrontation Clause applied to evidence offered at a sentencing proceeding.
Melissa Hamilton (University of Houston Law Center) has posted Risk and Needs Assessment: Constitutional and Ethical Challenges on SSRN. Here is the abstract:
Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised. Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law.
Monday, October 13, 2014
The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision making process. Ultimately, I argue that, because the general verdict with answers to written questions does not suffer from these paradoxes, it should be adopted in place of the special verdict.
An addition to the "dumb crimnals" file, from Reuters:
A pair of armed-robbery suspects in New Orleans have given police seeking their capture on Monday a helpful clue: pictures of themselves taken with one of their victim's cell phones and uploaded to her storage account.
Daniel C. Richman (Columbia Law School) has posted Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes on SSRN. Here is the abstract:
This essay – written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” – is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities. Readers undoubtedly can come up with more than three styles. But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism.”
Sunday, October 12, 2014
But the Judge’s rejection of that argument comes down to what may be seen as a fateful technicality: she argues that even if the FBI did hack the Silk Road server, Ulbricht hadn’t sufficiently demonstrated that the server belonged to him, and thus can’t claim that his privacy rights were violated by its search. “Defendant has…brought what he must certainly understand is a fatally deficient motion to suppress [evidence],” the judge writes. “He has failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he has failed to submit anything establishing that he has a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized.”
|1||341||A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion
Mark William Osler and Mark W. Bennett
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa)
Date posted to database: 1 Sep 2014 [[2nd last week]
|2||334||Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team
Stanford Law School - Constitutional Law Center
Date posted to database: 27 Aug 2014 [3rd last week\
|3||237||Banks, Marijuana, and Federalism
Julie Andersen Hill
University of Alabama - School of Law
Date posted to database: 30 Aug 2014 [5th last week]
|4||212||Intellectual Property Infringement as Vandalism
Irina D. Manta and Robert E. Wagner
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law
Date posted to database: 24 Aug 2014 [6th last week]
|5||198||It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts
Patricia Salkin and Bailey Ince
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center
Date posted to database: 5 Sep 2014 [8th last week]
|6||182||Waking the Furman Giant
Sam Kamin and Justin F. Marceau
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 5 Aug 2014
Last Revised: 15 Aug 2014 [7th last week]
|7||171||Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash
University of Chicago Law School
Date posted to database: 23 Aug 2014 [9th last week]
|8||170||Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission
Owen D. Jones, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman,Morris B. Hoffman, Read Montague, Stephen Morse,Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott,Laurence Steinberg, Kim A. Taylor-Thompson, Anthony D. Wagner and Gideon Yaffe
Vanderbilt University - Law School & Dept. of Biological Sciences, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law, Stanford University - Psychology and Yale Law School
Date posted to database: 31 Aug 2014 [10th last week]
|9||138||Drafting an Effective 'Revenge Porn' Law: A Guide for Legislators
Mary Anne Franks
University of Miami School of Law
Date posted to database: 21 Jul 2014 [new to top ten]
|10||131||Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis'
Vanderbilt University - Law School
Date posted to database: 9 Aug 2014 [new to top ten]
Saturday, October 11, 2014
Jordan Blair Woods (University of Cambridge) has posted Decriminalization, Police Authority, and Routine Traffic Stops (UCLA Law Review, Vol. 62, No. 3, 2015, Forthcoming) on SSRN. Here is the abstract:
Although there is no universal definition of "decriminalization," discussions about decriminalization largely focus on modifying how conduct is sanctioned or punished. This Article contends that there is a need to broaden discussions about decriminalization beyond sanctions to consider restrictions on police authority. As argued, sanction-focused approaches to decriminalization fail to capture the costs and harms imposed by formal institutions of social control — such as the police — at earlier stages of the criminal justice process.
To illustrate these points, this Article focuses on the most common form of civilian interaction with the police — the routine traffic stop. Through original research, this Article shows that since the 1970s twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm. It then exposes and examines an asymmetry in the criminal justice process that has emerged from the sanction-focused nature of traffic decriminalization. The heart of this asymmetry is that the primary focus on sanctions within the traffic decriminalization movement has enabled states to maintain full access to methods of social control via the policing of traffic to further crime-control policies (for example, drug interdiction). This access occurs even when police initially target noncriminal traffic conduct and comes at the expense of civilian physical security, privacy, liberty, and dignity.
Issue summary is from ScotusBlog, which also links to papers:
- Jennings v. Stephens: Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.
Friday, October 10, 2014
Corey Rayburn Yung (University of Kansas School of Law) has posted Concealing Campus Sexual Assault: An Empirical Examination on SSRN. Here is the abstract:
This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame.
With only a month until the scheduled trial of Ross Ulbricht, the alleged creator of the drug site Silk Road, Ulbricht’s defense lawyers have zeroed in on the argument that the U.S. government illegally hacked the billion-dollar black market site to expose the location of its hidden server. The prosecution’s latest rebuttal to that argument takes an unexpected tack: Prosecutors claim that even if the FBI did hack Silk Road without a warrant—and prosecutors are careful not to admit they did—that intrusion would be a perfectly law-abiding act of criminal investigation.
. . .
“Even if the FBI had somehow ‘hacked’ into the [Silk Road] Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment,” the prosecutors’ new memo reads. “Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to ‘hack’ into it in order to search it, as any such ‘hack’ would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.”
Thursday, October 9, 2014
Stephen I. Vladeck (American University - Washington College of Law) has posted Terrorism Prosecutions and the Problem of Constitutional 'Cross-Ruffing' (36 Cardozo Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
Under current U.S. law, certain terrorism suspects are potentially subject to both military detention and civilian criminal prosecution if and when they are apprehended by the United States. This result may seem wholly unsurprising in light of the hybrid approach the United States has pursued with respect to combating the threats posed by al Qaeda and its affiliates — relying simultaneously on the very separate legal regimes governing uses of military force and ordinary law enforcement. But the flexibility available to the government by combining these historically distinct paradigms in individual cases raises a host of thorny legal questions; the implications of which have not adequately been explored.