Sunday, June 19, 2016
|1||499||The Federal Circuits’ Second Amendment Doctrines
David B. Kopel and Joseph G.S. Greenlee
Independence Institute and Independent
Date posted to database: 21 Apr 2016
|2||195||Living at the Intersection: Laws & Vehicle Residency
Jessica So, Scott MacDonald, Justin Olson,Ryan Mansell and 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 [3rd last week]
|3||164||Campus Sexual Assault Adjudication and Resistance to Reform
Michelle J. Anderson
CUNY School of Law
Date posted to database: 21 Apr 2016 [4th last week]
|4||148||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 [5th last week]
|5||124||Causation: Linguistic, Philosophical, Legal and Economic
Richard W. Wright and Ingeborg Puppe
Illinois Institute of Technology - Chicago-Kent College of Law and University of Bonn - Department of Law
Date posted to database: 22 Apr 2016 [6th last week]
|6||107||Belief States in Criminal Law
James A Macleod
Date posted to database: 27 Apr 2016 [7th last week]
|7||79||Introduction to Causation, Liability and Apportionment: Comparative Interdisciplinary Perspectives
Richard W. Wright, Florence G'sell and Samuel Ferey
Illinois Institute of Technology - Chicago-Kent College of Law, University of Lorraine and University of Lorraine
Date posted to database: 19 Apr 2016 [10th last week]
|8||74||Leniency, Collusion, Corruption, and Whistleblowing
Reinaldo Luz and Giancarlo Spagnolo
CAPES, Coordenação de Aperfeiçoamento de Pessoal de Nível Superior and Stockholm School of Economics (SITE)
Date posted to database: 2 May 2016 [new to top ten]
|9||60||Law and the Sciences of the Brain/Mind
University of Pennsylvania Law School
Date posted to database: 24 Apr 2016 [new to top ten]
|10||65||Unilateral Invasions of Privacy
Roger Allan Ford
University of New Hampshire School of Law
Date posted to database: 24 Apr 2016 [new to top ten]
Saturday, June 18, 2016
Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences.
Friday, June 17, 2016
Denis Binder (Chapman University, The Dale E. Fowler School of Law) has posted The Application of Criminal Law to Disasters and Tragedies in Asia and the Pacific Islands on SSRN. Here is the abstract:
The New Millennium has witnessed a substantial increase in criminal prosecutions in disasters and tragedies. Common examples include structural failures, maritime accidents, and mining disasters. They may or may not entail substantial environmental damage. Loss of life is a common denominator. Even "natural disasters" usually have a major human component in causing the resulting magnitude of the catastrophe.
The Asian and Pacific Island countries are leading the way in these prosecutions, which often include officials for dereliction in office, often corruption. China and India have by far the most prosecutions.
Public attention are focused on these failures through social media and the omnipresence of smart phones and tablets with digital photo and video capabilities. Incidents quickly go viral on the internet.
"Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive"
For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive. Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice. The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.
From The New York Times:
From the mid-1950s to the early 1970s, police surveillance of political organizations in New York was extensive enough to require more than half a million index cards, simply to catalog and cross-reference the many dossiers. But over the ensuing decades, the dossiers themselves were presumed missing or lost. Police Department lawyers said they had no idea where the files had gone.
Now, a significant portion of the missing files have been discovered during what the city said on Thursday was a routine inventory of a Queens warehouse, where archivists found 520 brown boxes of decades-old files, believed to be the largest trove of New York Police Department surveillance records from the era.
Alex Steel (University of New South Wales (UNSW) - Faculty of Law) has posted Shaking the Foundations: Criminal Law as a Means of Critiquing Assumptions of the Centrality of Doctrine in Law (Livings and Gledhill (ed) The Teaching of Criminal Law: The pedagogical imperatives, Routledge, Forthcoming) on SSRN. Here is the abstract:
While fundamental doctrines and legal principle figure strongly in textbook and superior court analyses of the criminal law, the practical operation of the law is far more open to other approaches. This chapter explores how it is useful to demonstrate to students the variable and political use of doctrine and principle in constructing and interpreting criminal law the way courses are constructed. This includes courses that range beyond the traditional offences such as homicide to include new offences that are significantly different in their construction - such as terrorism, drugs and sexual assault offences; and that include offences that are rarely appealed, such as public order and police powers offences. Doing so exposes students to how the different players in criminal justice define crime, and the different outcomes that can lead to in different offences and courts.
The trial of the major German war criminals by the International Military Tribunal is universally recognized as a pivotal juncture in the development of international criminal law. Seventy years on, what can be learnt from that experience? This essay examines the Nuremberg Principles and their legacy in national and international law in the seven decades since they took place. It first examines the Nuremberg trials themselves along with the important role played by Robert H. Jackson, chief prosecutor for the United States, before turning to the impact of the trials on the development of international law, national case law of individual states and the establishment of the ad hoc international criminal tribunals. It then examines two modern challenges to the Nuremberg legacy: firstly, the unfinished business of codifying and enforcing the Nuremberg principles themselves, including the need for a new global convention on crimes against humanity and universal ratification of the ICC Statute: and. secondly the challenges posed by the noncompliance of states with the Nuremberg Principles, particularly with respect to the unlawful use of force and the commission of war crimes and crimes against humanity. Finally, the essay concludes that: (1) international justice does not need to be perfect to work; (2) international criminal trials are not the only way to ensure accountability; and (3) both the Nuremberg trials themselves and the subsequent establishment of the International Criminal Court have had long-lasting and extraordinary effects on the modern world.
Thursday, June 16, 2016
Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel. Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.
Alex Steel (University of New South Wales (UNSW) - Faculty of Law) has posted Criminalisation and Technology: What's the Harm of Using Mobile Phones While Driving (Thomas Crofts, Arlie Loughnan (ed), Criminalisation and Criminal Responsibility in Australia, Oxford, 2015) on SSRN. Here is the abstract:
Despite a wide range of driver distractions that can cause vehicle crashes and road trauma, the use of mobile phones has been largely singled out for criminal prohibition. In this paper the underlying justification for criminalising the use of phones while driving is examined. The offence provides an opportunity to go beyond philosophical or moral justifications and consider underlying empirical evidence.
Fourth Amendment law is transactional: it focuses on the one-off interaction typified by the singular investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice. Vindicating Fourth Amendment values today requires more than what the conventional transactional approach has to offer. This Article recasts problems of surveillance as problems of governance and develops an administrative framework to help address them. Administrative law suggests a way to flesh out the requirement for Fourth Amendment “reasonableness” in the exercise of agency discretion, where today’s Fourth Amendment often punts. Administrative law also provides a mechanism, independent of criminal procedure, through which courts can impose more systemic safeguards on privacy. Finally, administrative law points to a set of extrajudicial strategies for addressing surveillance at the level of governance.
Jennifer M. Chacón (University of California, Irvine School of Law) has posted Human Trafficking, Immigration Regulation and Sub-Federal Criminalization (New Criminal Law Review, 2016, Forthcoming) on SSRN. Here is the abstract:
In less than two decades, the issue of human trafficking has evolved from a relatively obscure concept to a widely discussed international social problem that has engendered a host of interventions at the international, national, and sub-national level. The purpose of this article is to shed light on how anti-trafficking efforts have been instantiated at the local level. This article assesses the record of sub-federal anti-trafficking efforts in the United States by looking at state anti-trafficking legislation, newspaper coverage of anti-trafficking efforts within states, and published cases involving state trafficking prosecutions in nine different states in the United States in the period from 2004-2014. These states’ anti-trafficking laws have varied histories. Some state legislators appear to have been motivated primarily by concerns about migration control, others by concerns about the need to further criminalize sexual exploitation. This article discusses these histories and then analyzes the implementation of anti-trafficking laws at the state level by looking at criminal prosecutions brought under these state trafficking laws.
Ilya Somin has this post at The Volokh Conspiracy. In part:
First, much of the public is ignorant about public policy issues, and forms opinions without serious consideration of the evidence. Such ignorance is not necessarily a sign of stupidity or bad moral character, but is usually just a result of rational behavior by individual citizens. Nonetheless, if you know very little about terrorism, gun control, radical Islamism, and so on, your immediate emotional reactions to a terrorist attack are unlikely to be a good guide to policy. Anger and sorrow are not substitutes for knowledge. Unfortunately, however, in the aftermath of a terrible tragedy, there is an even stronger instinct than usually to just “do something” that feels good in reaction to the event instead of carefully considering our options, or at least acknowledging the limitations of your insight. At such times, politicians have incentives to cater to angry, but poorly-informed public opinion, often with harmful results.
Second, most people have a strong tendency to evaluate political events in a highly biased manner. Instead of acting as truth-seekers and weighing new evidence objectively, we often react to events “political fans,” overvaluing any new information that seems to reinforce our preexisting views, while ignoring or dismissing anything that cuts the other way. Often people reinterpret inconvenient evidence in ways that supports their views, even if it actually does not, a process known to experts as “confirmation bias.” Such bias is particularly strong in an era of high political polarization, where we also have strong partisan bias in favor of our own party’s ideas, and against those associated with the opposition.
. . .
There is a long history of dubious and counterproductive policies enacted as a consequence of knee-jerk emotional reactions to high-profile tragedies. Examples include such cases as Megan’s Law (enacted in the aftermath of public outrage against high-profile cases of sexual predation against children) and the “zero tolerance” policies adopted in many schools in the aftermath of the 1999 Columbine shootings, which have done little to reduce crime, and much to harm school children. High-profile terrorist attacks also often generate counterproductive knee-jerk reactions that harm innocent people without doing much to prevent future terrorism.
From The New York Times:
Even before the shooting rampage at a gay nightclub in Orlando, Fla., lesbian, gay, bisexual and transgender people were already the most likely targets of hate crimes in America, according to an analysis of data collected by the Federal Bureau of Investigation.
L.G.B.T. people are twice as likely to be targeted as African-Americans, and the rate of hate crimes against them has surpassed that of crimes against Jews.
The arguments in favour of legalising voluntary euthanasia and doctor-assisted suicide initially appear convincing. We should, it is said, respect people’s autonomy, euthanasia is a compassionate response to unbearable suffering, it has (supposedly) worked well in those nations that have implemented it, and so on. But on closer analysis, the arguments are far less persuasive. Such a new law is unnecessary given the current legal ability of all but the most incapacitated to take their own life and the availability of palliative care. Any euthanasia law — even one carefully drafted with requisite safeguards — is susceptible to noncompliance and vulnerable to abuse. Moreover, any law would face the ineradicable reality of self-imposed pressure the vulnerable experience to “do the right thing”. This article sets out ten reasons why euthanasia should not be legalised and contends that the case for decriminalising it has not been made out by the proponents of it.
Steven M. Bellovin , Matt Blaze , Susan Landau and Stephanie 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) have posted It's Too Complicated: The Technological Implications of IP-Based Communications on Content/Non-Content Distinctions and the Third Party Doctrine (Harvard Journal of Law and Technology, Forthcoming) on SSRN. Here is the abstract:
For more than forty years, electronic surveillance law in the United States developed under constitutional and statutory regimes that, given the technology of the day, distinguished content from metadata with ease and certainty. The stability of these legal regimes and the distinctions they facilitated was enabled by the relative stability of these types of data in the traditional telephone network and their obviousness to users. But what happens to these legal frameworks when they confront the Internet? The Internet’s complex architecture creates a communication environment where any given individual unit of data may change its status — from content to non-content or visa-versa — as it progresses Internet’s layered network stack while traveling from sender to recipient. The unstable, transient status of data traversing the Internet is compounded by the fact that the content or non-content status of any individual unit of data may also depend upon where in the network that unit resides when the question is asked.
Wednesday, June 15, 2016
Murat C. Mungan (George Mason University School of Law) has posted Salience and the Severity Versus the Certainty of Punishment on SSRN. Here is the abstract:
The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment. In simple economic models, this presumption implies that criminals must be risk-seeking. Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses. This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior. The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high. This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al. -- in simple law enforcement models.
From the New York Times:
[O]n Tuesday, Mr. Caspersen’s lawyer contended that his client, a former Wall Street executive with an Ivy League pedigree, was the victim of an uncontrollable gambling addiction that drove him for more than a decade. So gripping was Mr. Caspersen’s addiction, the lawyer said, that he checked his phone throughout the day for updates on the stock market’s direction and his “all in” bearish bets that ran into tens of millions of dollars.
. . .
As recently as Feb. 11, Mr. Caspersen had $112.8 million in a brokerage account and could have easily paid back the $38.5 million he had owed family and friends. Instead, the very next trading day he ordered his broker, at an unnamed Wall Street firm, to place a new round of all-in bets that the market would fall that week.
. . .
Mr. Shechtman said news media reports have wrongly characterized his client as a man driven by greed and self-interest.
“This is not about Wall Street greed,” he said. “This is about addiction and mental illness.”
Melanie Randall and Vasanthi Venkatesh (University of Western Ontario - Faculty of Law and University of California, Berkeley, School of Law, Students) have posted Why Sexual Assault in Intimate Relationships Must Be Criminalized as Required by International Human Rights Law: A Response to the Symposium Comments (American Journal of International Law Unbound, May 17, 2016) on SSRN. Here is the abstract:
Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.
Evidence jurisprudence assumes that impeachment rules are intended to help determine the truth of the matter by identifying liars. For example, a witness’s credibility can be impeached with evidence that she has a fraud conviction because in theory that conviction suggests she is deceitful and is therefore likely to lie under oath. Scholars, judges and rulemakers have criticized this system of impeachment, demonstrating again and again that the rules are ineffective at identifying liars and lack any social science basis. Yet the impeachment rules endure.
This Article identifies the reason for their endurance in the face of overwhelming evidence: impeachment rules are not and never have been about identifying false statements in order to get to the truth. The purpose of these rules is to identify which persons have the culturally recognized moral integrity or honor to be worthy of belief in court. In other words, impeachment rules enforce not a scientific but a status-based view of truth in which status markers, such as reputation and prior crimes, determine who will be deemed a probable liar. I show this using both historical and modern examples. The effect of this categorical error (confusing status with veracity) is to abandon the avowed purpose of evidence law – truth seeking – in favor of the very different, and potentially contrary goal of norm enforcement. The side-effect is that it perpetuates systemic biases in the justice system. It may be that soon we will have some scientific way to identify liars. In the interim, though, we should abandon status as a proxy for credibility.