Sunday, November 20, 2016
|1||287||Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper
Craig Forcese and Kent Roach
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law
Date posted to database: 8 Oct 2016 [2nd last week]
|2||145||Clarity in Criminal Law
Georgetown University Law Center
Date posted to database: 16 Sep 2016 [3rd last week]
|3||139||Dose of Reality: The Effect of State Marijuana Legalizations
Angela Dills, Sietse Goffardand Jeffrey Miron
Cato Institute, Cato Institute and Cato Institute
Date posted to database: 23 Sep 2016 [5th last week]
|4||124||'Revenge Porn' Reform: A View from the Front Lines
Mary Anne Franks
University of Miami School of Law
Date posted to database: 19 Oct 2016
|5||121||Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus?
Lawrence M. Solan andTammy A Gales
Brooklyn Law School and Hofstra University
Date posted to database: 13 Oct 2016 [6th last week]
|6||95||A Catharsis for U.S. Trust Law: American Reflections on the Panama Papers
Reid K. Weisbord
Rutgers Law School
Date posted to database: 20 Oct 2016 [9th last week]
|7||88||Criminal Law, Neuroscience and Voluntary Acts
European University Institute
Date posted to database: 25 Oct 2016 [8th last week]
|8||76||Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories
University of Minnesota - Twin Cities - School of Law
Date posted to database: 18 Oct 2016 [10th last week]
|9||71||Implicit Bias, Self-Defence, and the Reasonable Person
Jules Holroyd and Federico Picinali
University of Sheffield and London School of Economics & Political Science (LSE)
Date posted to database: 22 Sep 2016 [new to top ten]
|10||71||How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence
Deborah W. Denno
Fordham University School of Law
Date posted to database: 7 Nov 2016 [new to top ten]
Saturday, November 19, 2016
|1||234||The Constitutional Right to Collateral Post-Conviction Review
Carlos Manuel Vazquez andStephen I. Vladeck
Georgetown University Law Center and University of Texas School of Law
Date posted to database: 16 Sep 2016
|2||196||The Judicial Presumption of Police Expertise
Columbia University - Law School
Date posted to database: 30 Sep 2016
|3||192||Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders
University of San Diego School of Law
Date posted to database: 11 Oct 2016
|4||172||Terry's Original Sin
Columbia Law School
Date posted to database: 18 Sep 2016
|5||171||Comment on R v K(A): Carding, Racial Profiling and Police Perjury
David M. Tanovich and Donald R. Stuart
University of Windsor - Faculty of Law and Queen's University
Date posted to database: 4 Mar 2016
|6||156||Forensics and Fallibility: Comparing the Views of Lawyers and Judges
Brandon L. Garrett andGregory Mitchell
University of Virginia School of Law and University of Virginia School of Law
Date posted to database: 7 Nov 2016 [new to top ten]
|7||145||Rethinking Prosecutors’ Conflicts of Interest
Bruce A. Green and Rebecca Roiphe
Fordham University School of Law and New York Law School
Date posted to database: 9 Oct 2016
|8||137||If George Washington Did It, Does that Make It Constitutional?: History's Lessons for Wartime Military Tribunals
Georgetown University Law Center
Date posted to database: 21 Sep 2016 [6th last week]
|9||122||Victim Impact Statements and Expressive Punishment in the Age of Social Media
Erin L. Sheley
University of Calgary Faculty of Law
Date posted to database: 22 Sep 2016 [10th last week]
|10||119||Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System
Laura I. Appleman
Willamette University College of Law
Date posted to database: 11 Sep 2016 [9th last week]
Friday, November 18, 2016
In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the SEC adjudicates claims of misconduct under the securities laws, and the Federal Trade Commission deals with concerns regarding anticompetitive behavior. This segmentation of enforcement authority has created an information and coordination problem amongst regulators, resulting in an enforcement regime where institutional misconduct is adjudicated in a piecemeal fashion.
Kyle Rozema and Max M. Schanzenbach (Northwestern University - Pritzker School of Law and Northwestern University - Pritzker School of Law) have posted Good Cop, Bad Cop: An Analysis of Chicago Civilian Allegations of Police Misconduct on SSRN. Here is the abstract:
Preventing police officer misconduct, while giving police officers the incentives and flexibility to fight crime, is a notoriously difficult challenge. We explore whether civilian complaints can help identify and reduce police officer misconduct. Using data on over 50,000 civilian allegations against police officers in Chicago over a 13-year period, we find that civilian allegations are strongly associated with (1) non-civilian allegations of misconduct, such as allegations from supervisors, and (2) the likelihood of and outcomes in civil rights litigation. We conclude that civilian allegations contain a strong signal of police officer misconduct. In particular, lawsuits against police officers are external and quantifiable measures of officer misconduct and typically arise from serious incidents. We further find that, if an administrative body sustains an allegation against an officer, that officer’s civilian allegation rate decreases and the probability that he or she exits the force increases. We conclude that civilian allegations against police officers in Chicago can be better utilized to prevent misconduct.
Deborah W. Denno (Fordham University School of Law) has posted Foreword: Criminal Behavior and the Brain: When Law and Neuroscience Collide (Fordham Law Review, Vol. 85, No. 399-422, 2016) on SSRN. Here is the abstract:
This Foreword provides an overview of the symposium, "Criminal Behavior and the Brain: When Law and Neuroscience Collide," and discusses the articles of the nearly thirty judges, academics, and practitioners who participated. The symposium's articles have an overarching theme in common: each pertains in some way to the criminal justice system’s effort to punish or rehabilitate more fairly and effectively. Section I looks at the history and framework of neuroscience and law. Francis Shen’s article examines overlooked moments in history, including the use of electroencephalography evidence, psychosurgery, and the developing application of neuroscience in personal injury cases in the 1980–1990s. The historical overview continues with Elizabeth Bennett’s article, which discusses more recent developments regarding how neuroscience is currently employed in the courtrooms to mitigate sentencing.
Thursday, November 17, 2016
Andrew Dyer (University of Sydney - Faculty of Law) has posted (Grossly) Disproportionate Sentences: Can Charters of Rights Make a Difference? (Monash University Law Review, Forthcoming, 2017) on SSRN. Here is the abstract:
A comparison between United Kingdom (UK) and Australian law concerning grossly disproportionate sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. While the relevant Australian case law suggests that there are virtually no restrictions on the state’s ability to enact mandatory sentencing laws in those jurisdictions without a charter of rights, the UK and Strasbourg courts have now made it clear that grossly disproportionate sentences cannot be imposed compatibly with Article 3 of the European Convention on Human Rights (ECHR), and that mandatory sentencing schemes are particularly likely to produce breaches of that Article. When further developing the law in this area, the UK courts and the European Court of Human Rights (ECtHR) should learn from the relevant North American jurisprudence, avoiding the excessively deferential approach evident in many of those authorities and embracing the Canadian Supreme Court’s more interventionist stance recently in The Queen and Attorney General of Canada v Nur and Charles. In turn, Nur provides further evidence that, when they are armed with a charter of rights, the courts can make a difference if they are courageous enough to do so.
Charles Loeffler, Jordan Hyatt and Greg Ridgeway have posted Self-Reported Wrongful Convictions among Prisoners on SSRN. Here is the abstract:
Recent studies have estimated the frequency of wrongful convictions in U.S. capital cases at approximately 4.1%. Much less is known about the prevalence of wrongful convictions among more general and representative criminal justice populations. Capital cases are rare and most criminal defendants forgo trials and post-adjudication proceedings, curtailing the legal process and making it extremely difficult to collect the information necessary to estimate the prevalence of conviction errors. We report the results of a survey of a general population of state prisoners who were asked to anonymously report their involvement in the crimes for which they were convicted. To assess the veracity of responses, aggregate prisoner self-reports were compared to verifiable conviction information and the probability of false innocence claims were estimated using a mixture of binomial distributions. Based on this survey we estimate that wrongful convictions occur in 6-8% of criminal convictions leading to imprisonment. Results also indicate that in half of reported wrongful convictions, no trial has occurred and no post-conviction relief is being sought. These results demonstrate that offender self-reports can be reliably employed to assess the operation of the justice system, as well as used for estimating the frequency of wrongful convictions in general, non-capital criminal justice populations. In addition, self-report survey instruments, can form the basis of future studies predicting the contributing factors of wrongful convictions in representative samples and the benchmarking of legal systems against one another for the purposes of identifying jurisdictions with systematically different rates of wrongful convictions.
Lawrence M. Friedman and Joanna L. Grossman (Stanford University - School of Law and Southern Methodist University - Dedman School of Law) has posted Double Take: The Law of Embezzled Lives (University of Cincinnati Law Review, Vol. 83, No. 1, 2014) on SSRN. Here is the abstract:
This essay is about double lives and role-playing in law and society when and why it occurs, how the law responds to it, and its social meaning or significance.
The authors discuss situations in light of many examples, where it is (or was) considered wrong or illegal to live two lives; or where the "false" life is a lie of the type that would be considered gravely and impermissibly deceptive.
Melissa Hamilton (University of Houston Law Center) has posted Extreme Prison Sentences: Legal and Normative Consequences (Cardozo Law Review, Vol. 38, No. 1, 2016) on SSRN. Here is the abstract:
The American criminal justice system has an obsession with lengthy prison sentences. From theoretical perspectives, harsh penalties may be justified to retributively punish heinous criminals, to incapacitate dangerous people, and to deter potential wrongdoers. But for a penalty to achieve any of these purposes it must still be proportional to the offense and offender. A disproportionately severe sentence is harmful in being unnecessary and tyrannical in nature.
This Article reports on an empirical study of extreme sentences, which is defined to include sentences of imprisonment of at least 200 years. The author compiled an original dataset of extreme sentences issued in the federal sentencing system. Since the year 2000, federal judges sentenced 55 individuals to prison terms ranging from 200 to 1,590 years. At such a length, these sentences may appear irrational as they are beyond any person’s natural lifespan, particularly as the federal system provides no opportunity for parole. Thus, it may be of interest to understand how and why such extraordinary sanctions came to fruition and to confront the consequences thereof in terms of normalizing extreme prison sentences.
Wednesday, November 16, 2016
Michael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted A Review of Vihvelin's Causes, Laws, and Free Will (Criminal Justice Ethics, December 2014) on SSRN. Here is the abstract:
If Vihvelin is right, compatibilism might have been better off if Frankfurt’s Black and Jones had never appeared on the printed page; her work is a continuation of the compatibilist thread as it developed before the Frankfurt break. The main line of her argument takes us from paradigm cases through the Consequence Argument to her own account of freedom. The challenge, I think, is for her to be able to put to rest the question that undid the Conditional Analysis: “But supposing that the ability to act otherwise depends upon the ability to try (choose, decide) to act otherwise, the question remains: could she have tried (chosen, decided) to do otherwise?” For me, at least, her resolution is not entirely satisfactory.
Dana Kay Nelkin and Samuel C Rickless (University of California, San Diego and University of California San Diego) have posted The Relevance of Intention to Criminal Wrongdoing (Criminal Law and Philosophy, Volume 10, Issue 4, pp. 745–762, December 2016) on SSRN. Here is the abstract:
In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing (e.g., Alexander and Ferzan (2009), Chiao (2010) and Walen (2009)). We then turn to some influential theories that articulate a direct role for intentions (e.g., Duff (2007), Husak (2009)). While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing.
Deborah W. Denno (Fordham University School of Law) has posted How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence (Fordham Law Review, Vol. #85, No. pp. 453-79, 2016) on SSRN. Here is the abstract:
Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. According to some, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility, while the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society. This “double-edged sword” view of neuroscience evidence demonstrates the concern that the same information about the defendant can either be mitigating or aggravating depending on who is raising it. Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that the public beliefs about the impact of neuroscience on the criminal law can often be wrong.
Steven Zeidman (CUNY School of Law) has posted What Public Defenders Don't (Have to) Tell Their Clients on SSRN. Here is the abstract:
New York State courts, like many other state and federal courts, have seen an increase in cases that pit lawyer versus client; where the lawyer wanted to proceed in one way and the client wanted to go in another direction. The resulting decisions, often inconsistent and irreconcilable, reflect the difficulties in navigating the lawyer-client relationship.
Recently, the New York Court of Appeals again waded directly into the muddy waters of attorney versus client decision-making. On the face of it, the Court was deciding whether counsel needed his client’s consent before telling the prosecutor that his client would not exercise his statutory right to testify in the Grand Jury. However, lurking beneath the surface are the larger and related questions of who, between lawyer and client, has ultimate decision-making power, and what information lawyers must provide clients about their rights.
Brandon L. Garrett and Gregory Mitchell (University of Virginia School of Law and University of Virginia School of Law) have posted Forensics and Fallibility: Comparing the Views of Lawyers and Judges (West Virginia Law Review, Vol. 119, 2016, Forthcoming) on SSRN. Here is the abstract:
Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a trial. As the Supreme Court has put it: “criminal justice today is for the most part a system of pleas, not a system of trials.” However, a CSI effect could be more consequential if it affects how criminal lawyers assess forensic evidence when they negotiate pleas or decide what evidence to present at trial. In this Essay, we begin to examine how criminal defense lawyers and prosecutors assess forensics, and we compare their views to those expressed by lay jurors. Part I of this Essay surveys the literature on the role that evidence plays in the plea bargaining process. In Part II, we present the results of two surveys that examine views on fingerprint and DNA evidence. Our focus was on two types of forensics: DNA evidence and fingerprint evidence. The evidence we gathered suggests misperceptions of both the evidence and how jurors will view the evidence. We found defense lawyers, in particular, may be far more skeptical of forensic evidence than jurors; indeed, defense lawyers may be overly skeptical of even DNA evidence. Most remarkable, however, was the great weight that jury-eligible adults placed on fingerprint evidence, just as many of the lawyers surveyed would have predicted, and even when compared to the weight they placed on DNA evidence. These results suggest far more must be done to study what information and influences shape the weight both lawyers and jurors place on forensics. We conclude in Part III by outlining how these surveys can provide a useful starting place for further research and policy.
Tuesday, November 15, 2016
In the landmark 1967 case In re Gault, the U.S. Supreme Court incorporated procedural due process protections into the administration of American juvenile courts and paved the way for lawyers to represent and prosecute children in juvenile court. The Court's sweeping opinion drew on empirical research to address broad principles of due process as well as the specifics of the case. In the decades since, American juvenile justice has been transformed. In this essay, we neither lament Gault's "lost promise" nor treat it as a "period piece." Instead, we use digital tools to investigate the use of this frequently cited case over time. We begin by reviewing the role of Abe Fortas, who wrote the majority opinion in this landmark decision. Next, we use digital tools and citation records to trace what happened to the most memorable parts of his decision (i.e., Fortas's Gault) in the subsequent case law, and how those parts compare to other citations of the case. We also use digital tools to search for potentially interesting patterns meriting further investigation. The conclusion notes that what remains of Gault is significant but largely confined to juvenile court. Yet scholars may be able to use citations to the case to discover valuable sites for exploring the legal history of American juvenile justice from 1967 to the present.
Julian A. Cook (University of Georgia Law School) has posted The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing (Southern Methodist University Law Review, Forthcoming) on SSRN. Here is the abstract:
On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these events are also — and much more importantly — connected by decades of Supreme Court jurisprudence. It will describe how since before the close of the Warren Court in 1969 the Supreme Court began a process of expanding police powers, restricting individual Fourth Amendment safeguards, and encouraging officers to engage in unconstitutional investigative practices. The article will proceed with a particularized focus upon the Supreme Court’s exclusionary rule and standing jurisprudence, and its discussion of Strieff will take place in this broader context. It will explain how the decline of the exclusionary rule and the attendant standing doctrine over the course of several decades has helped foster a culture of aggressive police practices. It will illuminate how the Court’s steady expansion of police investigative authority, coupled with its increasing willingness to forgive constitutional missteps by the government, have encouraged the police to engage in unconstitutional practices and to test the outer limits of acceptable police behaviors.
When people seek to reform rape law, the focus is on the actus reus — either abandoning the force element or redefining consent. This Article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this Article proposes that states adopt the mens rea of malice — a callous indifference towards the risk of whether the defendant had secured the consent of his sexual partner. If someone shoots a gun in a crowd and kills someone, that person had no knowledge or intent to kill. But the shooter would be liable for murder under the mens rea of malice because the person acted with callous disregard to the objective risk of harm that her conduct involved. When imported to rape, malice then effectively captures what is the precise social wrong in having unwanted sex — it is a defendant acting with callous indifference over whether his or her actions present an objective risk that he or she engaged in sexual activity without the consent of his or her partner.
Concerns about the use of excessive force by police, especially when directed at persons of color, have long been prevalent. A wide variety of proposals have been advanced to address the problem, including more robust regimes of criminal or civil liability, and reforms that facilitate the supervision and discipline of officers.
The striking thing about the reform menu is that it is virtually all stick and no carrot. This approach is less likely to produce optimal performance than over-deterrence – sometimes called depolicing. It is also likely to reinforce the code of silence – frequently documented in the literature on policing – in which police do not acknowledge wrongdoing in order to insulate themselves and their peers from discipline. Equally important, there has been no effort to assess proposed reforms in light of what we know about the sociology of policing and the ecology of highcrime communities. This literature suggests that high-crime communities are unlikely to achieve anything like stability without a robust police presence. Reforms that fail to grasp the need for aggressive policing at criminogenic hot spots are doomed to failure.
Utilizing the scholarly literature on policing, urban sociology, criminology, and, occasionally, the author’s experiences as a senior municipal official, this article identifies the weaknesses of leading proposals for addressing police violence, and considers as well some novel proposals that have not yet received attention in the scholarly literature, but that show greater promise for dismantling the code of silence and rendering policing more transparent and accountable.
Monday, November 14, 2016
Sherod Thaxton (University of California, Los Angeles (UCLA) - School of Law) has posted Race, Place, and Capital Charging in Georgia (Mercer Law Review, Vol. 67, No. 3 (2016)) on SSRN. Here is the abstract:
The U.S. Supreme Court has identified three types of constitutionally impermissible errors in the administration of capital punishment: arbitrariness, discrimination, and disproportionality. In this essay, I describe an empirically-anchored analytical framework for defining, identifying, and measuring these concepts. I then illustrate the usefulness of the framework by examining prosecutors' death penalty charging decisions in Georgia over an eight-year period. The results strongly suggest that prosecutorial decision-making in Georgia continues to be plagued by the very errors that led the Court to invalidate Georgia's capital punishment system forty years ago.
Jennifer Gongola, Daniel A. Krauss and Nicholas Scurich (University of California, Irvine, Claremont Colleges - Department of Psychology and University of California, Irvine) have posted Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments on SSRN. Here is the abstract:
The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards. This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP. Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.