Wednesday, July 9, 2014
From the Wall Street Journal:
Thomas Lee Hazen, a professor at the University of North Carolina School of Law who has followed the case, said the decision by Judge Naomi Reice Buchwald to throw out two securities counts last week was a turning point in the trial, reflecting her broad skepticism about the case.
But he said that was unlikely to change prosecutors' approach to insider-trading cases. "One loss does not make a disaster or necessarily signal a change in the prosecutions' approach, in what cases to bring and what cases not to bring," he said.
. . .
Last week, Judge Buchwald threw out the remaining two securities-fraud counts against Rengan, saying prosecutors hadn't presented evidence proving he was aware the tip was exchanged for a benefit, an issue also raised in the pending appeals case. She also said that some of prosecutors' arguments were "singularly unpersuasive." Jurors were only allowed to consider the remaining conspiracy charge.
The story is at Real Clear Policy. In part:
Building its system of licensing and regulation, under the supervision of the state’s Liquor Control Board, has been slow going for Washington, at least compared to Colorado. Licensing processes for growers, processers, and retailers have been slower than hoped for and plagued by some controversial choices. As a result, today’s openings in Washington will be far more limited than Colorado experienced back in January; just a handful of stores will have licenses (just one in Seattle, where demand is highest), and the legal supply available to them to sell will be extremely limited for now, making prices much higher than the black market initially.
18 U.S.C. § 641 prohibits the theft or misuse of federal government "things of value." The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or conversion, and government-produced or government-held information to be government property. The circuits disagree about whether § 641 applies to information, and, if it does, what its scope is: What information constitutes a "thing of value"? The Fourth Circuit construes § 641 to include all government-produced information and some privately created information, while the Ninth Circuit holds that no information can be a "thing of value." Other circuits limit the reach of § 641 to certain types of information due to First Amendment concerns arising from the potentially broad restriction on information dissemination that comes from criminalization of disclosure. This Note identifies and analyzes these approaches, and argues that a broad reading of § 641 is problematic. It concludes that Congress should clarify § 641’s scope, and, if Congress does not act, that all courts should take First Amendment considerations into account when determining whether the government can criminalize the disclosure of information.
Lucian E. Dervan (Southern Illinois University School of Law) has posted White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence (Kentucky Law Journal, Vol. 101, No. 723, 2013) on SSRN. Here is the abstract:
Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders. While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes. In fact, they typically represent some of the most commonly charged offenses in the federal system.
Kenneth W. Simons (Boston University - School of Law) has posted Punishment and Blame for Culpable Indifference (Inquiry: An Interdisciplinary Journal of Philosophy, 2014, Forthcoming) on SSRN. Here is the abstract:
In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely, and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability, and should consider affective and volitional dimensions as well, including the actor’s intentions, motives, and attitudes. One promising alternative mental state is the attitude of culpable indifference. However, we must proceed carefully when permitting criminal liability to turn on culpable indifference and similar attitudes, lest we punish vicious or unvirtuous feelings that are not sufficiently connected to wrongful acts, and lest we punish disproportionately for attitudes that reflect only a very modest degree of culpability.
Tuesday, July 8, 2014
Doug Berman has this post at Sentencing Law & Policy, excerpting a Washington Post article in part as follows:
[A]ides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.
The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.
Christopher Slobogin (Vanderbilt University - Law School) has posted Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disability on the Insanity Defense, Civil Commitment, and Competency Law on SSRN. Here is the abstract:
A number of laws that are associated with deprivations of liberty, including the insanity defense, civil commitment, guardianship of the person and numerous competency doctrines in the criminal context, require proof of mental disability as a predicate. The Convention on the Rights of Persons with Disability commands signatory states to eliminate that predicate. Summarizing principles set out in my book Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty, I explain how this seemingly radical stance can be implemented. Specifically, this article proposes adoption of an "integrationist defense" in the criminal context, an "undeterrability requirement" when the state seeks preventive detention outside of the criminal process, and a "basic rationality and self-regard test" for incompetency determinations. None of these proposals requires proof of mental disability.
David Cole (Georgetown University Law Center) has posted The Difference Prevention Makes: Regulating Preventive Justice (Criminal Law & Philosophy, March 2014) on SSRN. Here is the abstract:
Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a paradigm of prevention, employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre-textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and do not intrude on liberty, are welcome. But the move to a preventive justice model also creates potential for significant abuse. These risks suggest that we should be cautious about adopting preventive approaches, especially where they involve coercion. In part I of this essay, I articulate why preventive coercion is a problem. I respond, in particular, to a recent essay by Fred Schauer, The Ubiquity of Prevention, which argued that 'it is a mistake to assume that preventive justice is a problem in itself [because] preventive justice is all around us, and it is hard to imagine a functioning society that could avoid it.' In part II, I outline the formal constitutional and other constraints that are implicated by preventive measures in the United States, and I demonstrate that these constraints play a relatively small role in the actual operation of preventive measures. In part III, I maintain that informal constraints may actually play a more significant operational role in checking the abuses of prevention.
Stewart Baker has this post at The Volokh Conspiracy. In part:
The story is built around the implied claim that 90% of NSA intercept data is about innocent people. I think the statistic is a phony. . . .
Suppose I become the target of a government investigation. The government gets a warrant and seizes a year’s worth of my email. Looking at my email patterns, that’s about 35,000 messages. About twenty percent – say 7500 –are one-off messages that I can handle with a short reply (or by ignoring the message). Either way, I’ll never hear from that person again. And maybe a quarter are from about 500 people I hear from at least once a week. The remainder are a mix — people I trade emails with for a while and then stop, or infrequent correspondents that can show up any time. Conservatively, let’s say that about 25 people are responsible for the portion of my annual correspondence that falls into that category. In sum, the total number of correspondents in my stored email is 7500+500+25 = 8000 or so. So the criminal investigators who seized and stored my messages from me, their investigative target, and over 8000 people who aren’t targets.
Monday, July 7, 2014
Benjamin L. Berger (York University - Osgoode Hall Law School) has posted Poetry, Mercy, and the Phenomenology of Justice (Forthcoming in Ehud Ben Zvi, Claudia V. Camp, David M. Gunn and Aaron W. Hughes, eds., Poets, Prophets, and Texts in Play: Studies in Biblical Poetry and Prophecy in Honour of Francis Landy (London: T & T Clark, 2014)) on SSRN. Here is the abstract:
What would a phenomenology of justice look like and what role would mercy play in that account? The unruly experiences and lives of the individuals and communities wrapped up in the dramas of justice are paradoxically distant from legal and philosophical reasoning, laundered by rules of evidence for the instrumental exigencies of the former, and frequently effaced by the disciplinary conventions of the latter. One casualty of these habits of reflection is our understanding of the role of mercy in the experience of justice. Wanting to recapture space to imagine the role of mercy in justice, this paper makes an exploratory turn to a world consumed with representing the messy experience of justice and still thick with the language of mercy – to the poetic and narrative world created in the Book of Jonah. Drawing inspiration from a close reading of this mythic tale, I argue that mercy is an essential feature of the phenomenological architecture of justice, requiring us, as it does, to connect abstract judgment with the complexities and exigencies of our concrete conditions. Though distant from contemporary legal and political theory, I argue that mercy in fact remains an uncanny aspect of our experience of justice and so demands a political and legal scholarship that spends as much time reflecting on the sources and nature of mercy as a political virtue, as it does on the demands of reason and the dictates of law alone.
Nancy J. King (Vanderbilt University - Law School) has posted Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi (Southern Methodist University Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted. These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating this development in Apprendi law, or interested in joining the states that already recognize that a prior conviction must be proven like any other element whenever it increases the penalty range beyond the range allowed without the conviction, this essay provides a handy reference to existing rules and statutes that could serve as blueprints for reform.
Dan Simon (USC Gould School of Law, USC Department of Psychology) has posted Criminal Law at the Crossroads: Turn to Accuracy (Southern California Law Review, Vol. 87, 2014) on SSRN. Here is the abstract:
Given the pressing societal need to punish criminal behavior and the solemn nature of depriving people of their liberty and even life, one would expect that the accuracy of these fateful determinations would be the paramount goal of the criminal justice process. This article critically examines the system’s low prioritization of the accuracy of the verdicts it produces, and focuses on four key factors that hinder the attainment of accuracy: problems with the reliability of the evidence produced by police investigations, the opacity of criminal investigations, the intensity of the adversarial process, and the muddled understanding of the system’s goals.
Special attention is paid to the fourth factor which can be deemed responsible for the relegation of accuracy in favor of competing interests and constraints that are borne primarily by bureaucratic considerations and system defensiveness.
Lucian E. Dervan (Southern Illinois University School of Law) has posted The Quest for Finality: Five Stories of White Collar Criminal Prosecution (4 Wake Forest Journal of Law & Policy 91, 2014) on SSRN. Here is the abstract:
In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.
Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.
From the Washington Post:
Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.
Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.
Sunday, July 6, 2014
|1||762||Not an 'Ebay for Drugs': The Cryptomarket 'Silk Road' as a Paradigm Shifting Criminal Innovation
Judith Aldridge and David Décary-Hétu
University of Manchester - School of Law and University of Montreal - School of Criminology
Date posted to database: 15 May 2014
|2||289||Katz Has Only One Step: The Irrelevance of Subjective Expectations
Orin S. Kerr
George Washington University - Law School
Date posted to database: 13 Jun 2014 [4th last week]
|3||223||The Brave New World of Cell-Site Simulators
Albany Law School
Date posted to database: 24 May 2014
|4||207||Expert Testimony on Interrogation and False Confession
Brian L. Cutler, Keith A. Findley andDanielle Loney
University of Ontario Institute of Technology (UOIT), University of Wisconsin Law School and University of Ontario Institute of Technology (UOIT)
Date posted to database: 15 May 2014 [5th last week]
|5||206||Sales Suppression as a Service (SSaaS) & the Apple Store Solution
Richard Thompson Ainsworth
Boston University - School of Law
Date posted to database: 6 Jun 2014 [6th last week]
|6||191||Uncovering the Cover Ups: Death in Camp Delta
Mark Denbeaux, Charles Richard Church, Ryan K Gallagher, Adam Kirchner, Joshua Wirtshafter,Chrystal Loyer, Bahadir Ekiz, Kelly Ann Taddonio and Michael J. Ricciardelli
Seton Hall University - School of Law, Seton Hall University, School of Law '71, Seton Hall University, School of Law '14, Seton Hall University, School of Law '15, Seton Hall University, School of Law '14, Seton Hall University, School of Law '13, Seton Hall University, School of Law '13, Seton Hall University, School of Law '13 and Seton Hall University, School of Law '08
Date posted to database: 17 May 2014 [7th last week]
|7||162||The Failure of Mitigation?
Robert J. Smith, Sophie Cull and Zoe Robinson
University of North Carolina School of Law, Independent and DePaul University College of Law
Date posted to database: 8 Jun 2014 [10th last week]
|8||160||Re-Balancing Fitness, Fairness, and Finality for Sentences
Douglas A. Berman
Ohio State University (OSU) - Michael E. Moritz College of Law
Date posted to database: 3 May 2014
|9||157||Group Agency and Legal Proof; or, Why the Jury is an 'It'
Michael S. Pardo
University of Alabama School of Law
Date posted to database: 18 May 2014
|10||136||Law and Neuroscience
Owen D. Jones, Rene Marois, Martha J. Farah and Henry T. Greely
Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology
Center for Integrative and Cognitive Neuroscience, University of Pennsylvania and Stanford Law School
Date posted to database: 7 May 2014 [new to top ten]
Saturday, July 5, 2014
Friday, July 4, 2014
Jeffrey R. Boles (Temple University - Department of Legal Studies in Business) has posted Examining the Lax Treatment of Commercial Bribery in the United States: A Prescription for Reform (American Business Law Journal, Vol. 51, No. 1, 2014) on SSRN. Here is the abstract:
This article explores the discordant nature of commercial bribery, public sector bribery's neglected twin. It maintains that the existing set of federal and state legislation inadequately protects companies and the public from commercial bribery, and it argues for specific reforms to curtail the offense in the private sector. Part I explores the history of commercial bribery criminalization in the United States and details the inadequate contemporary federal and state law approaches to punish the offense. Part II analyzes the public policy justifications for punishing the offense. Part III advocates for legislative action and proposes specific statutory reforms for federal and state governments to strengthen their responses to commercial bribery. It also recommends a series of self-regulatory measures for companies to adopt in order to protect themselves from the offense's corrupting effects.
Thursday, July 3, 2014
In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene.
In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government.
Although Justice Kennedy's opinion suggests otherwise, Maryland v. King has the potential to fundamentally alter Fourth Amendment law. Indeed, it is analogous to Terry v. Ohio. Like Terry, King alters the "rules of the game" and significantly expands the government's authority to search persons subject to custodial arrest. Just as a balancing test made it easy for the Court to extend Terry's rationale to different scenarios between police and suspicious persons, King's reasoning can be used to support collection and analysis of DNA samples from other persons subjected to governmental restraint, or from those who possess diminished privacy interests vis-a-vis the government.