Wednesday, July 13, 2016
Orin Kerr has a post about this troubling case at The Volokh Conspiracy. In part:
The U.S. Court of Appeals for the 9th Circuit has handed down a very important decision on the Computer Fraud and Abuse Act, Facebook v. Vachani, which I flagged just last week. For those of us worried about broad readings of the Computer Fraud and Abuse Act, the decision is quite troubling. Its reasoning appears to be very broad. If I’m reading it correctly, it says that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization.
I think this decision is wrong, and that it has big implications going forward. Here’s a rundown of the case and why it matters. I’ll conclude with a thought about a possible way to read the case more narrowly, as well as why I’m not convinced that narrow reading is correct.
From The New York Times:
In the wake of last week’s sniper shooting that left five Dallas police officers dead, many people have lamented that it happened in this city, with a black police chief who even critics say has made inroads with the community and worked to steer his force away from its history of racism and abuse. Since Chief David O. Brown took over the department in 2010, excessive-force complaints have dropped 64 percent, and he has started de-escalation training and a successful community policing program.
. . .
A 2014 survey by the Dallas-based Embrey Family Foundation found that while 67 percent of Dallas’s black residents believed that the city’s black men received “a lot” of discrimination, only 37 percent of white people thought the same.
Leona Deborah Jochnowitz (Hartwick College, Department of Sociology/Criminal Justice) has posted Book Review and Concept Paper: Examining Wrongful Convictions: Stepping Back, Moving Forward. Edited by Allison D. Redlich, James R. Acker, Robert J. Norris, Catherine L. Bonventre. Carolina Academic Press, 2014, Durham, North Carolina. (2016 Thomson Reuters E Criminal Law Bulletin E Vol. 52 No. 2) on SSRN. Here is the abstract:
Examining Wrongful Convictions: Stepping Back, Moving Forward by the interdisciplinary array of its coauthors, Allison D. Redlich, James R. Acker, Robert J. Norris, Catherine L. Bonventre, brings together expertise in psychological research, law, sociology, and forensic science. This book helps to develop methodological and theoretical perspectives that move the science of innocence research forward by first reaching back to the historical and legal roots and then forward to analyze the prevalence of wrongful convictions, the correlations and causal relationships, and policies for possible reform. Each chapter written by contributing scholars adheres to this backward/forward leitmotiv focusing on interdisciplinary issues that examine the systemic, political, and structural issues of innocence research. This structure facilitates the book’s examination of fresh and innovative approaches to understanding innocence theory, rooted in the past and looking forward, such as racism, justice system culture and adversarial approaches, plea bargaining, false confessions, and American punitive wars on drugs and crime.
Tuesday, July 12, 2016
Jeremy Slack and Howard John Campbell (University of Texas at El Paso and University of Texas at El Paso) have posted On Narco-Coyotaje: Illicit Regimes and Their Impacts on the U.S. – Mexico Border (Antipode, Forthcoming) on SSRN. Here is the abstract:
Many have debated whether or not human smugglers, known as coyotes, are involved with drug trafficking organizations. Scholars have largely rejected so-called “narcocoyotaje”, however; we hope to problematize this narrative by adding a new theoretical layer to the discussion. Namely, we explore the ways in which different criminal activities produce hierarchies and control illicit activities within the clandestine geography of the US – Mexico border. These “illicit regimes” operate against the State, creating a hierarchy that dominates other illicit activities in order to maximize profit, avoid detection and consolidate power. While other studies have explored the relationships between the State and illicit practices this article takes the relationship between two illicit industries as its object of study. Doing so will help us move past the simply binary question about whether or not coyotes are involved with drug cartels, and allows us to understand what is being produced by this relationship, and its consequences for everyone involved.
|1||216||Living at the Intersection: Laws & Vehicle Residency
Jessica So, Scott MacDonald,Justin Olson, Ryan Manselland Sara Rankin
Seattle University, School of Law, Students, Seattlle University, School of Law, Students, Seattlle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
Date posted to database: 8 May 2016
|2||162||Shut Out: How Barriers Often Prevent Meaningful Access to Emergency Shelter
Suzanne Skinner and Sara Rankin
Seattle University School of Law and Seattle University School of Law
Date posted to database: 10 May 2016
|3||70||Neuroethics and Criminal Responsibility – A Criminal Law Comment on Neil Levy's Consciousness and Moral Responsibility
University of Lisbon - School of Law
Date posted to database: 14 Jun 2016 [4th last week]
|4||60||A Neuro-Legal Lingua Franca: Bridging Law and Neuroscience on the Issue of Self-Control
Joshua W. Buckholtz, Valerie F. Reyna and Christopher Slobogin
Harvard University, Cornell University and Vanderbilt University - Law School
Date posted to database: 2 Jun 2016 [5th last week]
|5||58||Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 19 Jun 2016 [6th last week]
|6||57||The Case Against Euthanasia and Assisted Suicide
University of Otago - Faculty of Law
Date posted to database: 8 Jun 2016 [10th last week]
|7||50||The Offence of Knowingly Presenting False or Forged Evidence in the Rome Statute
Moscow State Institute of International Relations (MGIMO)
Date posted to database: 20 Jun 2016 [9th last week]
|8||47||Chapter Three. The Case Against Retribution
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 9 May 2016 [7th last week]
|9||40||A Sure Bet? The Legal Status of Daily Fantasy Sports
City University of New York - Baruch College, Zicklin School of Business
Date posted to database: 22 Jun 2016 [new to top ten]
|10||50||'Your Corrupt Ways Had Finally Made You Blind': Prosecutorial Misconduct and the Use of 'Ethnic Adjustments' in Death Penalty Cases of Defendants with Intellectual Disabilities
Michael L. Perlin
New York Law School
Date posted to database: 23 May 2016 [8th last week]
Jason Iuliano (Princeton University, Woodrow Wilson School of Public and International Affairs, Department of Politics, Students) has posted Why Capital Punishment Is No Punishment at All (64 American University Law Review 1377 (2015)) on SSRN. Here is the abstract:
Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society’s most severe punishment.
In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.
Monday, July 11, 2016
Carissa Byrne Hessick (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Introduction: Refining Child Pornography Law: Crime, Language, and Social Consequences (Michigan Univ. Press 2016) on SSRN. Here is the abstract:
This is a page proof of the Introduction to Refining Child Pornography Law: Crime, Language, and Social Consequences (Michigan Univ. Press 2016), which presents the work of experts in law, sociology, and social work who study child pornography law and its consequences. The legal definition of child pornography is, at best, unclear. In part because of this ambiguity and in part because of the nature of the crime itself, the prosecution and sentencing of perpetrators, the protection of and restitution for victims, and the means for preventing repeat offenses are deeply controversial. This edited volume clarifies the questions surrounding child pornography law and begins to formulate answers. Focusing on the roles of language and crime definition, the contributors discuss the increasing visibility child pornography plays in the national conversation about child safety, and present a range of views regarding the punishment of those who produce, distribute, and possess materials that may be considered child pornography. The Introduction includes brief summaries of subsequent chapters.
|1||236||It's Too Complicated: The Technological Implications of IP-Based Communications on Content/Non-Content Distinctions and the Third Party Doctrine
Steven M. Bellovin, Matt Blaze, Susan Landau andStephanie K. Pell
Columbia University - Department of Computer Science, University of Pennsylvania - School of Engineering & Applied Science, Worcester Polytechnic Institute and West Point--Army Cyber Institute
Date posted to database: 8 Jun 2016
|2||196||The Heavy Costs of High Bail: Evidence from Judge Randomization
Arpit Gupta, Christopher Hansman and Ethan Frenchman
Columbia University - Columbia Business School, Columbia University, Barnard College - Department of Economics and Maryland Office of The Public Defender
Date posted to database: 6 May 2016
|3||177||Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops
University of Pennsylvania Law School
Date posted to database: 7 May 2016 [9th last week]
|4||151||The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe
University of Toronto, Faculty of Law, Students
Date posted to database: 24 May 2016 [5th last week]
|5||136||Penal Welfare and the New Human Trafficking Intervention Courts
Aya Gruber, Amy J. Cohenand Kate Mogulescu
University of Colorado Law School, Ohio State University (OSU) - Michael E. Moritz College of Law and The Legal Aid Society
Date posted to database: 8 May 2016 [8th last week]
|6||132||The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing
Elizabeth Richardson, Pauline Spencer and David B. Wexler
Monash University - Faculty of Law, Magistrates' Court of Victoria and University of Puerto Rico - School of Law
Date posted to database: 19 May 2016
|7||109||Some Clerical Contributions to Ex Parte Quirin
Ross E. Davies
Antonin Scalia Law School, George Mason University
Date posted to database: 13 Jun 2016
|8||87||Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers
Philipp Hacker and Bilyana Petkova
Humboldt University of Berlin and European University Institute
Date posted to database: 22 May 2016 [new to top ten]
|9||86||Combatting Police Discrimination in the Age of Big Data
Sharad Goel, Maya Perelman,Ravi Shroff and David Alan Sklansky
Stanford University, Central District of California, New York University (NYU) and Stanford University
Date posted to database: 1 Jun 2016 [new to top ten]
|10||81||Tempest in a Teapot – The Role of the Decision Tree in Enhancing Juror Comprehension and Whether It Interferes with the Jury's Right to Deliberate Freely?
University of Toronto
Date posted to database: 24 May 2016 [new to top ten]
"Reducing police abuses by reducing the number of hostile interactions between police and civilians"
Ilya Somin has this post at The Volokh Conspiracy, extensively excerpting an October column from the New York Times in which Harvard economist Sendhil Mullainathan explained reasons other than racism to explain police killings of African-Americans. Much of the post focuses on ways to reduce the high number of interactions between police and citizens, including cutting back on the drug war. In addition, one might note how the high penalties for drug crimes make more plausible police fears that particular encounters will involve violence, by increasing suspects' incentives to avoid apprehension.
From The New York Times:
African-Americans in San Francisco are stopped and searched by police officers in disproportionate numbers and are subject to a host of other actions that appear to be discriminatory, according to a report issued on Monday that found the Police Department was in need of significant overhaul. The report also said that the department’s disciplinary system was riddled with shortcomings.
. . .
The report, by the Blue Ribbon Panel on Transparency, Accountability and Fairness in Law Enforcement, found that while African-Americans make up 5.8 percent of the city’s residents, they were about 40 percent, 20 of 51, of the victims of officer-involved shootings from January 2010 through July 2015. (The study noted that no race was listed for suspects in 18 of the 69 total shootings during that period).
The study also found evidence of racial disparities in the rate of police stops and searches of African-Americans, even though officers were far less likely to find guns, drugs or other contraband on blacks.
Jonathan Abel has this guest post at The Volokh Conspiracy. In part:
Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.
Vida Johnson (Georgetown Law) has posted Arresting Batson: How Striking Jurors Based on Arrest Records Violated Batson (Yale Law & Policy Review, Vol. 34, No. 387, 2016) on SSRN. Here is the abstract:
Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent — a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.
Saturday, July 9, 2016
Susan Dimock (York University) has posted Criminalizing Dangerousness: How to Preventively Detain Dangerous Offenders (Criminal Law and Philosophy, September 2015, Volume 9, Issue 3, pp 537-560) on SSRN. Here is the abstract:
I defend a form of preventive detention through the creation of an offence of ‘being a persistent violent dangerous offender’ (PVDO). This differs from alternative proposals and actual habitual offender laws that impose extra periods of incarceration on offenders after they have completed the sentence for their most recent crime(s) or as a result of a certain number of prior convictions (as in three strikes laws). I, instead, would make ‘being a persistent violent dangerous offender’ an offence itself. Persons to be preventively detained (imprisoned) would be tried and convicted of this offence (on the usual standards of proof and after a criminal trial in which they enjoyed all the normal protections of due process and just criminal procedure). My approach would then have one significant advantage: provided the elements of being a PVDO could be rendered sufficiently determinate, punishing persons under such an offence would comport with central rule of law values, most importantly legality and fair notice, as well as principles of proportionality in sentencing.
Friday, July 8, 2016
The German parliament [official website] unanimously passed a law [law, PDF, german] Thursday expanding the definition of sex crimes, making any form of nonsensical sexual contact a crime. The new "no means no" law [Reuters report] protects victims of sexual attacks who withhold consent yet do not physically resist the attack. The old law required victims to physically resist in order to press charges. The legislation comes on the heels of a series of sexual assaults in the city of Cologne on New Year's Eve. On January 18, German officials arrested an Algerian refugee in connection with at least one of the 497 reported sexual assaults during New Years Eve, although the man was released and his charges were cleared[Al Jazeera report] later in May. According to Heiko Maas, Germany's Justice Minister, only one in 10 rapes are reported in Germany and only 8 percent of rape trials result in conviction
From The New York Times:
Until recently in Pennsylvania, a witness like Ms. Constand would have had to testify at a preliminary hearing. But a state appellate court ruling last year allowed for wider use of hearsay evidence, meaning that a prosecutor could opt in some circumstances to introduce as evidence only a statement by a complainant, like Ms. Constand’s statement to investigators, at a preliminary hearing. Direct testimony was not necessary.
The appellate court ruling is now being challenged in the state’s supreme court. Mr. Cosby’s lawyers had argued in Thursday’s hearing that he had a right to confront Ms. Constand in court before the case went to trial. Afterward they indicated they would fight the court’s decision.
Vanessa Bettinson and Charlotte Bishop (De Montfort University - Department of Law and University of Exeter - School of Law) have posted Is the Creation of a Discrete Offence of Coercive Control Necessary to Combat Domestic Violence? (NILQ 66(2): 179–97) on SSRN. Here is the abstract:
This article reviews the criminal law in England and Wales to determine its ability to criminalise coercive and controlling behaviour used in many cases of domestic violence.
Thursday, July 7, 2016
If legal moralism posits a normative connection between culpable wrongdoing and punishment, what should legal moralists say about cases in which responsible agents commit culpable wrongs that have not been proscribed ex ante by the state in which they occur? More succinctly, what is the status of the principle of legality according to legal moralists? I argue that the absence of law typically (but perhaps not always) provides a sufficient non-desert basis to withhold punishment from culpable wrongdoers whose punishment is deserved. I critically examine the probable implications of this way of accounting for the significance of legality.
From The New York Times:
Minnesota’s governor called on Thursday for a federal investigation into the shooting of a black man by a police officer during a traffic stop near St. Paul, after millions of people watched the bloody, dying man in a grisly video recorded by his girlfriend and streamed live moments after the shooting.
The deadly encounter Wednesday night in the city of Falcon Heights was at least the second shooting this week of a black man by police officers, after the killing of a man in Baton Rouge during an attempted arrest, and parts of both encounters were recorded on video.
Lorenn Walker (Hawai'i Friends of Restorative Justice) has posted Re-entry Circles for the Innocent: The Psychological Benefits of Restorative Justice and Taking Responsibility in Response to Injustice (in Response to Injustice, pp. 139-157, The Psychology of Restorative Justice: Managing the Power Within, Ed. Theo Gavrielides, Ashgate: Surrey, England 2015) on SSRN. Here is the abstract:
While restorative practices are generally for people who take responsibility for committing crimes, there are psychological advantages in assuming responsibility for dealing with injustice regardless of who caused the problems. This kind of responsibility taking is future oriented and is not the same as being accountable for committing a crime. This paper examines what taking responsibility means for reentry planning circles. The circles apply restorative justice and solution-focused brief therapy for incarcerated individuals to plan for their needs, including making amends with harmed loved ones, and others, who meet with them in prison. The case of a convicted woman who maintains her innocence, but who had a reentry circle, is studied.
Dennis J Baker has posted Lesser Included Offences, Alternative Offences and Accessorial Liability on SSRN. Here is the abstract:
In this essay, I shall examine when an alternative offence and also a lesser-included offence is available for an accessory. Particular reference will be made to the offences of manslaughter and murder. It shall be argued, that the decision in R. v Jogee and Ruddock v The Queen is wrong as far as it holds that an accessory can be liable for manslaughter when the principal has been convicted of murder, because it is necessary to prove that the accessory intended the principal to perpetrate the actus reus of the relevant offence with the requisite mens rea for that offence. In such a scenario the accessory does not intentionally assist or encourage the more serious offence (murder), so she cannot be derivatively liable for it, and the principal does not perpetrate the less serious offence (manslaughter), so there is no offence of manslaughter for the accessory’s liability to derive from. The accessory only attempts to assist or encourage the principal to engage in conduct that has the potential to form the conduct element of constructive manslaughter. Such a conviction would rest on a presumption of participation in a result crime, when no result was in fact caused by the non-perpetrated crime (manslaughter), but instead the result was caused by an alternative more serious crime (murder), which was in fact perpetrated. If the principal had done the actus reus that the accessory intended (i.e. unlawfully inflict a.b.h.), the victim most likely would not have been killed and it is pure speculation to suggest the victim could have been killed by a.b.h. as opposed to the act of grievous bodily harm (g.b.h.) or act of intentional killing, which in fact killed the victim. It shall be argued that in such cases it is best to prosecute the putative assister or encourager under sections 44 or 45 of the Serious Crime Act 2007, for attempting to assist or encourage a potential aggravated assault.