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

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Thursday, January 15, 2015

Baude on Marijuana Federalism

Baude williamWilliam Baude (University of Chicago - Law School) has posted State Regulation and the Necessary and Proper Clause (Case Western Reserve Law Review, Vol. 65, 2015) on SSRN. Here is the abstract:

The new marijuana federalism is here, but is it here to stay? This paper worries about that question by way of two related points, a practical one and a technical one, to ultimately argue that states should have a bigger role in defining the limits of federal constitutional power.

The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level have no guarantee their investments are safe from the whims of federal law enforcement. Moreover, even if the federal drug laws are not actively enforced in those states, the laws create serious problems for banks, lawyers, and others who might otherwise want to work with the in-state marijuana industry. 

The technical point is that this instability can be traced to an importantly erroneous footnote in the Supreme Court’s recent decision in Gonzales v. Raich. Footnote 38 claims that state law can never be relevant to the scope of Congress’s power under the Commerce Clause or the Necessary and Proper Clause. That conclusion is wrong, is not required by the rest of the Court’s enumerated powers jurisprudence, and should be cast aside.

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January 15, 2015 | Permalink | Comments (0)

Wednesday, January 14, 2015

Lapp on DNA for Delinquency

Lapp KevinKevin Lapp (Loyola Law School Los Angeles) has posted DNA for Delinquency: Compulsory DNA Collection and a Juvenile's Best Interest (14 U. Md. L.J. Race, Religion, Gender & Class 50 (2014)) on SSRN. Here is the abstract:

Thirty states and the federal government compel DNA collection from juveniles based on a finding of juvenile delinquency. A main justification for doing so has been that it deters recidivism and promotes rehabilitation, furthering the goals of the juvenile court and consistent with the court’s role as a “protecting parent.” There is little empirical evidence, however, that compulsory DNA collection deters people from committing crimes or fosters their rehabilitation. Whatever specific deterrence DNA databasing may achieve is certainly diminished with respect to juveniles, who are less deterrable than adults. This undermines the best-interest rationale for collecting DNA from juveniles. Indeed, to the extent that criminal justice contact has a criminogenic effect on juveniles, DNA collection from juveniles could produce unintended, perverse consequences.

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January 14, 2015 | Permalink | Comments (0)

Gerstein & Prescott on Policing Public Order Without Criminal Law

Charlie Gerstein and J.J. Prescott (New York Southern District Court and University of Michigan Law School) have posted Policing Public Order Without the Criminal Law (The Future of Criminal Law? (2014) (Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School) (Michelle Dempsey, Antony Duff, Zach Hoskins and Neha Jain, eds)) on SSRN. Here is the abstract:

Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions. Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse. In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot. Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.

January 14, 2015 | Permalink | Comments (0)

Opinion permitting prevailing habeas petitioner to argue theories rejected on appeal without filing cross-appeal

Justice Scalia delivered the opinion for the Court in Jennings v. Stephens. Justice Thomas filed a dissenting opinion, joined by Justices Kennedy and Alito.

January 14, 2015 | Permalink | Comments (0)

Darr on Corroboration in Sex Offense Cases in Mandate Palestine

Orna Alyagon Darr (The Carmel Academic Center - Faculty of Law) has posted Relocated Doctrine: The Travel of the English Doctrine of Corroboration in Sex Offense Cases to Mandate Palestine (Yale Journal of Law and the Humanities, Vol. 26, No. 2, 2014) on SSRN. Here is the abstract:

The spread of the British Empire was accompanied by the relocation of legal doctrines, which took on new meanings and uses. This article follows the relocation to Mandate Palestine of the common-law doctrine of corroboration of victim testimony in sex offense cases. In England, corroboration was a cautionary rule that expressed mistrust of female complainants. In jury-less Palestine, the rule also expressed deep distrust toward non-English complainants, especially children. While the British rulers of Palestine prided themselves on imposing sexual regulation tailored to protecting women and children, an analysis of the way corroboration was applied in that setting reveals a rigidly imposed and hard-to-meet evidentiary standard. British colonial judges maintained that demanding corroboration in sex offense cases was an implementation of English law. However, the rule was not simply a ‘transplant’ that reproduced the original but, rather, acquired its meaning within the specific social context and in the subjectivities of its users.

January 14, 2015 | Permalink | Comments (0)

Gurney on Autonomous Vehicles

Jeffrey K. Gurney (University of South Carolina - School of Law) has posted Driving Into the Unknown: Examining the Crossroads of Criminal Law and Autonomous Vehicles (5 Wake Forest J. L. & Pol'y, 2015, Forthcoming) on SSRN. Here is the abstract:

This Article examines the application of criminal law to autonomous vehicles. The Article applies the general purposes of punishment to criminal laws which intersect with autonomous vehicles. These laws include: (1) rules of the road; (2) driving under the influence; (3) reckless driving; (4) vehicular manslaughter; (5) location specific crimes; and (6) physical and virtual interference with a vehicle. This Article provides an overview of how a violation of these criminal laws will be treated under current criminal law, and then it argues that current law should be amended because the current application of criminal and traffic laws to autonomous vehicles will make programming the vehicles challenging and enforcing the laws difficult. 

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January 14, 2015 | Permalink | Comments (0)

Tuesday, January 13, 2015

Rosenthal on Sexual Assaults in the Military

Marc Edward Rosenthal has posted Where is the Justice? The Sexual Assault Crisis Plaguing the Military and a Lack of Meaningful Justice (4 U. MIAMI NAT'L SEC. & ARMED CONFLICT L. REV. 295 (2014)) on SSRN. Here is the abstract:

Sexual assault is a major problem in every branch of the American Armed Forces. The current military justice system is flawed in such a way as to deny victims of sexual assault in the military meaningful and competent justice. Victims of sexual assault in the military do not receive the same due process that their civilian counterparts receive. The bottom line is that our service-members deserve more than the current military justice system provides because service-members leave their loved ones and homes to fight - sometimes never to return - in order to protect our homeland and promote American justice and democracy abroad. 

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January 13, 2015 | Permalink | Comments (0)

Bettwy on Comparative Criminal Procedure Through Film

Samuel William Bettwy has posted A Survey of Comparative Criminal Procedure through Foreign Films (Pisa: Opinio Juris in Comparatione, 2014 (Special Issue)) on SSRN. Here is the abstract:

Textbook for course in Comparative Criminal Procedure through Film. Constructs of comparative legal analysis are described and then applied to examine the adjudicative process through foreign films, beginning with police contact with a crime suspect and ending either with a judge or jury’s acquittal of an accused or with execution of sentence. The analytical constructs include the inquisitorial-adversarial dichotomy, role-specific constructs, and the Civil Law-Common Law dichotomy. In addition, differences in criminal procedure are examined through the Socialist, Islamic, and indigenous legal traditions. Role-specific constructs measure the degree to which a suspect is expected to cooperate, the degree of independence and neutrality of the prosecutor, and the degree of lay participation (jurors) in adjudication and sentencing. The author concludes that a survey of foreign films confirms that suspects and accused enjoy greater protection of the presumption of innocence in Common Law, adversarial justice systems, and that there are several aspects of U.S. criminal procedure that could be changed to further safeguard the presumption of innocence.

January 13, 2015 | Permalink | Comments (0)

Opinion holding that "forced-accompaniment" enhancement applies to modest movements

Justice Scalia delivered the opinion for the unanimous Court in Whitfield v. United States.

January 13, 2015 | Permalink | Comments (0)

Monday, January 12, 2015

Lamparello on Third-Party Doctrine

Lamparello adamAdam Lamparello (Indiana Tech - Law School) has posted City of Los Angeles v. Patel: The Upcoming Supreme Court Case No One is Talking About on SSRN. Here is the abstract:

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question — and the proverbial elephant in the room — is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry is the tip of the iceberg. The hotel guests’ privacy rights — just like the cell phone user’s and the internet subscriber’s — is where the rubber meets the constitutional road.

The issue lurking in the background of City of Los Angeles v. Patel — and in the back of most citizens’ minds — transcends hotel owners, highly regulated industries, and Holiday Inns. It is about whether the third-party doctrine, which was created during the disco era when rotary telephones were in vogue, adequately protects privacy rights in the digital era. The answer to this question should be no.

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January 12, 2015 | Permalink | Comments (0)

MacDonnell on Self Defense in Canada

Vanessa MacDonnell (University of Ottawa - Common Law Section) has posted The New Self-Defence Law: Progressive Development or Status Quo? ((2014) 92:2 Canadian Bar Review 301) on SSRN. Here is the abstract:

For more than three decades, feminist law reformers have argued that the law must better account for the different ways that men and women act in self-defence. In R v Lavallee, the Supreme Court agreed. Perhaps it should come as no surprise, then, that when the Conservative government introduced changes to the self-defence provisions in 2011 the amendments would reflect this evolution. In this paper I assess whether the law of self-defence is stronger now that feminist demands for change have been translated into law. In particular, I ask whether the new provision is likely to produce better results for groups whose self-defence claims have not always been dealt with satisfactorily.

January 12, 2015 | Permalink | Comments (0)

Jackson on Legitimate Authority

Jonathan Jackson (London School of Economics & Political Science - Department of Methodology) has posted On the Dual Motivational Force of Legitimate Authority (Forthcoming, Jackson, J. (2015). ‘On the Dual Motivational Force of Legitimate Authority’, in Bornstein, B. H. and Tomkins, A. J. (eds.) Cooperation and Compliance with Authority: The Role of Institutional Trust. 62nd Nebraska Symposium on Motivation. New York: Springer) on SSRN. Here is the abstract:

In this chapter I consider two ways by which the legitimacy of legal authorities might motivate people to abide by the law. Following recent criminological research I define legitimacy along two different dimensions: the first is the public recognition of the rightful authority of an institution, and the second is a sense among citizens that the institution is just, moral and appropriate. Data from a randomized controlled trial of procedurally just policing provide further support for the idea that justice systems can secure compliance by (a) instilling in citizens a sense of deference and obligation, and (b) showing to citizens that they represent a requisite sense of moral appropriateness. While prior work has tended to focus on the idea that legitimacy shape compliance through felt obligation, the current analysis shows that compliance is predicted by both duty to obey and moral endorsement. Consistent with a good deal of existing evidence, the findings also indicate the importance of procedural justice and group identification in the production of institutional legitimacy. I conclude with the idea that legitimacy may be able to shape compliance through shape content-free obligation and shared moral appropriateness.

January 12, 2015 | Permalink | Comments (0)

Dimock on Contractarian Theory and Mala Prohibita Offences

Susan Dimock (York University) has posted Contractarian Criminal Law Theory and Mala Prohibita Offences (R.A. Duff, Lindsay Farmer, S.E. Marshall, M. Renzo and V. Tadros, eds., Criminalization: The Political Morality of the Criminal Law (Oxford University Press): 151-181) on SSRN. Here is the abstract:

One seemingly perennial debate within criminal law theory concerns what, if anything, justifies the use of mala prohibita offences. While some of that debate may be attributed to disputes over the meaning of mala prohibita and how they should be contrasted with mala in se, and indeed whether there is a meaningful distinction to be drawn at all, most criminal law theorists continue to employ the distinction and share at least a core understanding of what they mean by the respective labels. I employ the most common and minimal description of the distinction in what follows: an offence is an instance of malum prohibitum when the conduct it proscribes is not wrongful prior to or independent of law, while a malum in se offence is an act that is wrongful prior to and independent of its legal prohibition. This way of drawing the distinction is compatible with contractarianism, whereas some other ways of drawing it are not. Most notably, some commentators think of mala in se offences as involving ‘acts that are wrong in themselves’ or as consisting of conduct that is intrinsically wrong. Such usage lends itself naturally to ‘a kind of moral realism’, as Alice Ristroph notes, and such realism is incompatible with the constructivist rational choice contractarianism I utilize in this paper. Malum in se conduct cannot be understood as wrong prior to the social contract, prior to or independently of the agreement to enter into mutually beneficial cooperation, but it can be understood as wrong prior to its legal prohibition, and it is that common understanding that forms the basis of the discussion to follow.

January 12, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 219 The Compliance Function: An Overview 
Geoffrey P. Miller 
New York University School of Law 
Date posted to database: 20 Nov 2014 [3rd last week]
2 216 Debating Rape Myths 
Helen Reece 
London School of Economics - Law Department 
Date posted to database: 9 Dec 2014 [1st last week]
3 159 The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation 
Dov Jacobs 
Leiden University - Grotius Centre for International Legal Studies 
Date posted to database: 18 Nov 2014 [6th last week]
4 144 Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism 
Anita Mukherjee 
University of Pennsylvania - The Wharton School 
Date posted to database: 13 Nov 2014 
5 134 'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5 
Michael L. Perlin 
New York Law School 
Date posted to database: 13 Nov 2014 
6 133 The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling 
Scott E. Sundby 
University of Miami School of Law 
Date posted to database: 3 Dec 2014 [10th last week]
7 128 Do Audits Matter?: A Parallax Theory of the Relation between Tax Enforcement and Underreporting 
J. T. Manhire 
Treasury Executive Institute - U.S. Department of the Treasury 
Date posted to database: 19 Nov 2014 [new to top ten]
8 117 Introducing the United States Police-Shooting Database: A Multi-Level Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the United States, 2011-2014 
Cody Ross 
University of California, Davis 
Date posted to database: 8 Dec 2014 [9th last week]
9 114 The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama 
Jason Zarrow and William Milliken 
Independent and Independent 
Date posted to database: 26 Nov 2014 [7th last week]
10 105 Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform 
Allegra M. McLeod 
Georgetown University Law Center 
Date posted to database: 18 Dec 2014 [new to top ten]

January 12, 2015 | Permalink | Comments (0)

Saturday, January 10, 2015

Lynch & Haney on Mock Capital Jury Deliberations

Mona Lynch and Craig Haney (University of California, Irvine - Department of Criminology, Law and Society and University of California, Santa Cruz - Department of Psychology) have posted Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations (Law and Social Inquiry, 2014) on SSRN. Here is the abstract:

This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making. The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.

January 10, 2015 | Permalink | Comments (0)

Friday, January 9, 2015

Kaye et al. on DNA as Evidence in the Courtroom

David H. Kaye Frederick R. Bieber and Damir Primorac (The Pennsylvania State University Dickinson School of Law , Independent and Primorac & Partners) have posted DNA as Evidence in the Courtroom (Forensic DNA Applications: An Interdisciplinary Perspective 509-25 (Dragan Primorac & Moses Schanfield eds. 2014)) on SSRN. Here is the abstract:

This paper appears in Forensic DNA Applications: An Interdisciplinary Perspective, a textbook and reference work on forensic molecular biology prepared for the International Society of Applied Biological Sciences. Originally submitted in January 2012, the chapter outlines the legal principles that govern the admissibility of scientific evidence, briefly surveys the history of legal challenges to forensic DNA typing, and simply identifies some current legal issues in the use of the technology in trials.

January 9, 2015 | Permalink | Comments (0)

Rosenblat et al. on Data and Civil Rights

Alex Rosenblat Kate Wikelius danah boyd Seeta Peña Gangadharan and Corrine Yu (Data & Society , The Leadership Conference on Civil and Human Rights , Data & Society , New America Foundation - Open Technology Institute and The Leadership Conference on Civil and Human Rights) have posted Data & Civil Rights: Criminal Justice Primer (Data & Civil Rights Conference, October 2014) on SSRN. Here is the abstract:

There has been some discussion of how “big data” can be used to remedy inequalities in the criminal justice system; civil rights advocates recognize potential benefits but remained fundamentally concerned that data-oriented approaches are being designed and applied in ways that also disproportionately harms those who are already marginalized by criminal justice processes. Like any other powerful tool of governance, data mining can empower or disempower groups. The values that go into an algorithm, and the metrics it optimizes for, are baked into its design. Data could be used to identify discrimination in current practices, or to predict where certain combinations of data points are likely to lead to an erroneous conviction. When algorithms are designed to improve how law enforcement regimes are deployed, the question that data analytics raises is, which efficiencies are we optimizing for? Who are the stakeholders, and where do they stand to gain or lose? How do these applications intersect with core civil rights concerns? Where can we use big data techniques to improve the structural conditions criminal justice system that lead to disparate impacts on marginalized communities? How do we measure that impact, and the factors that lead to it?

January 9, 2015 | Permalink | Comments (0)

"Supreme Court will consider the constitutionality of the Armed Career Criminal Act"

Will Baude has this post at The Volokh Conspiracy. In part:

Today after its first conference of 2015, the Supreme Court ordered the parties in Johnson to brief and reargue the following question: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague.” . . .

Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right.

January 9, 2015 | Permalink | Comments (0)

"Wrongly Convicted Man Was His Own Best Advocate"

From The New York Times:

The Brooklyn district attorney’s office, which revisited Mr. Hamilton’s case through its Conviction Review Unit, said that medical and scientific evidence, like the path of the bullets and where the victim’s bleeding occurred, undercut the sole eyewitness’s testimony and that the eyewitness was not credible.

Mr. Hamilton, 49, who was paroled in 2011, was one of the first to notice that there were troubling similarities in convictions involving a former police detective, Louis Scarcella. Mr. Hamilton discovered that Mr. Scarcella would often use the same eyewitness and produce confessions that defendants said were coerced or false.

January 9, 2015 | Permalink | Comments (0)

Breger on Violence Against Women

Breger melissaMelissa L. Breger (Albany Law School) has posted Transforming Cultural Norms of Sexual Violence Against Women (Journal of Research in Gender Studies, Volume 4(2), 2014, pp. 39–51) on SSRN. Here is the abstract:

A version of these remarks was delivered at the Stoneman/Katz Human Rights, Gender and the Law Conference: The State of Equality in Comparative Perspective, held at Albany Law School in April of 2013. The conference transcript was assembled into a monograph to memorialize the conference itself, as well as the Spring 2013 Kate Stoneman1 Series of Events. These remarks were part of a larger panel examining the issue of law and “culture.” In my remarks, I addressed culture in modern society which, though an ambiguous concept, greatly informs our world and our actions. I examined how individuals have become complacent at times, adopting a culture that normalizes violence towards women. I posited that even while explicit gender bias is often deemed unacceptable, modern society is embedded with implicit biases against women. These implicit biases contribute to a culture that is imbued with gendered norms relating to domination, over-sexualization, violation, and power and control over women and girls. I argued that the way to remedy these problems is to change the underlying culture in such a way that redefines gendered norms and gender equality. This can be achieved at least partially by educating our children before these gendered norms become embedded in their minds.

January 9, 2015 | Permalink | Comments (0)