Tuesday, April 14, 2015
Peter K. Westen (University of Michigan Law School) has posted Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert (New Criminal Law Review, Vol. 18, No. 2, pp. 167-213, 2015) on SSRN. Here is the abstract:
In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence – death – that state officials had been lauded in Europe for outlawing three years earlier. A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines both concern retroactivity in criminal law, but they are the converse of one another. The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing can be morally justified under limited circumstances, typically it is not – a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.
Lawrence Patihis , Scott O. Lilienfeld , Lavina Y. Ho and Elizabeth F. Loftus (University of California, Irvine , Emory University - Emory College of Arts and Sciences , Pennsylvania State University - Department of Behaviorial Sciences & Education and University of California, Irvine - Department of Psychology and Social Behavior) have posted Unconscious Repressed Memory Is Scientifically Questionable (Psychological Science, Vol. 25, No. 10, 2014) on SSRN. Here is the abstract:
Brewin and Andrews’s (2014) Commentary on our article (Patihis, Ho, Tingen, Lilienfeld, & Loftus, 2014) raises several thoughtful points with which we largely agree, but presents several criticisms that we do not believe withstand careful scrutiny. We respond briefly.
The great promise of American law is Equal Protection: everyone is equal before the law. Colorado’s Ethnic Intimidation statute runs contrary to this promise, by creating preferred classes of victims. Proposed “hate crimes” laws would make the problem even worse. Different groups should not be contending for special status in our criminal law. Identity politics strikes at the heart of the American motto of e pluribus unum, and encourages people to think of themselves as members of particular groups -- rather than as, most of all, Americans first. Laws based on identity politics lead to skewed prioritization of law enforcement resources, and impinge on values of free speech, which includes the freedom to hold and express the most odious ideas. Until Colorado’s statute is repealed, it should be improved by stronger penalties for the creation of hoaxes.
This Article takes as its starting point the recent turmoil over the continued vitality of the Fourth Amendment’s third party doctrine. The doctrine has long held that the government’s examination of information in the hands of a third party — whether a bank, a telephone company, or simply a friend — cannot constitute a search under the Fourth Amendment. This bright-line rule has been cast into considerable doubt by two recent Supreme Court cases, United States v. Jones and Riley v. California, which evince the Court’s concern over continued application of analog doctrines in a world of ever-expanding digital information and surveillance capacity. This Article argues that attempts to address the puzzle of the third party doctrine have been overly focused on refining what does and does not constitute a search, an endeavor that is unlikely to produce a durable solution. Instead, this Article focuses on reevaluating where third party searches fit into the Fourth Amendment framework. In doing so we examine the interplay between the Fourth Amendment’s two clauses, and the areas where the Court has held that the Reasonableness Clause applies while the Warrant Clause does not. A focus on the warrant exceptions reveals that third party searches fit comfortably within this category. Accordingly, we argue that third party searches should be acknowledged as searches — and thus fall within the ambit of the Fourth Amendment — but be evaluated under the Reasonableness Clause rather than the stricter Warrant Clause. Finally, we turn to Terry v. Ohio for a model of how courts should structure this reasonableness inquiry.
Monday, April 13, 2015
Sex work’s governance throughout the Commonwealth has historically been animated by the objective of rendering the sale of sex, and those who engage in such transactions, invisible. To achieve this end, lawmakers have characterized public, viewable sex work as a nuisance meriting criminalization. Although prohibition results in unequivocal perils for sex workers, governance strategies in this domain remain centred on criminalization. A new law in Canada, Bill C-36: the Protection of Communities and Exploited Persons Act, exemplifies this point. While Bill C-36 purports to shift criminal law’s focus from sex workers to their clients and profiteers, it continues to expose sex workers who work in public view to criminal prosecution. It thereby preserves sex work’s characterization as a nuisance, offensive to a community’s senses and deserving of proscription. Although Bill C-36 proclaims to promote dignity and equality rights, it prioritizes the interests of communities over those of sex workers. In the result, this new law will revoke sex workers’ social and political citizenship and thwart their personal security.
James Q. Whitman (Yale Law School) has posted Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.
Sunday, April 12, 2015
|1||940||Rethinking Presumed Knowledge of the Law in the Regulatory Age
Michael Anthony Cottone
Date posted to database: 24 Mar 2015 [2nd last week]
|2||391||Police Body-Worn Cameras
Alexandra Claudia Mateescu,Alex Rosenblat and danahboyd
Data & Society Research Institute, Data & Society Research Institute and Data & Society Research Institute
Date posted to database: 26 Feb 2015 [4th last week]
|3||210||Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005
Atif R. Mian and Amir Sufi
Princeton University - Department of Economics and University of Chicago - Booth School of Business
Date posted to database: 8 Feb 2015 [5th last week]
New York University School of Law
Date posted to database: 1 Mar 2015 [7th last week]
|5||162||Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law
City University of New York - Baruch College, Zicklin School of Business
Date posted to database: 1 Apr 2015 [new to top ten]
|6||161||A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges
Mark W. Bennett
U.S. District Court (Northern District of Iowa)
Date posted to database: 2 Mar 2015
|7||157||Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law
David B. Wexler
University of Puerto Rico - School of Law
Date posted to database: 15 Feb 2015 [9th last week]
|8||145||Using the 'Smart Return' to Reduce Tax Evasion
Joseph Bankman, Clifford Nass and Joel B. Slemrod
Stanford Law School, Stanford University and University of Michigan, Stephen M. Ross School of Business
Date posted to database: 16 Mar 2015 [new to top ten]
|9||139||Find It and Tax It: From TIEAs to IGAs
Reuven S. Avi-Yonah and Gil Savir
University of Michigan Law School and University of Michigan Law School
Date posted to database: 21 Feb 2015 [10th last week]
|10||121||Universal Jurisdiction Is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction
University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 20 Feb 2015 [new to top ten]
Saturday, April 11, 2015
Marc Edelman (City University of New York - Baruch College, Zicklin School of Business) has posted Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law (University of Illinois Law Review, 2016 Forthcoming) on SSRN. Here is the abstract:
Over the past two years, there has been a monumental shift in how U.S. professional sports leagues have perceived “daily fantasy sports.” Back in March 2013, the chief executive of Major League Baseball Advanced Media, Robert Bowman, told the New York Times that he perceived “daily fantasy sports” as “akin to a flip of the coin, which is the definition of gambling.” However, today, Major League Baseball promotes a play-for-cash “daily fantasy sports” contest on its website. Similarly, the National Basketball Association once purported to oppose all forms of fantasy sports gaming; meanwhile it now owns an equity stake in FanDuel Inc. – the marketplace leader in “daily fantasy sports.”
Today’s more favorable relationship between professional sports leagues and the “daily fantasy sports” industry has led many in the media to speculate that “[l]egal issues, although a concern, are relatively minor.” Nevertheless, such generalizations about the legal status of “daily fantasy sports” are grossly oversimplified. Indeed, there is no blanket immunity under federal or state law for “daily fantasy sports.” Rather, in all likelihood, the legal status of “daily fantasy sports” varies based on the nature of any specific contest’s game rules and where that particular contest operates.
Friday, April 10, 2015
David L. Noll (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Constitutional Evasion and the Confrontation Puzzle (Boston College Law Review, Vol. 56, No. 5, 2015) on SSRN. Here is the abstract:
Among the most notable developments in contemporary constitutional law is the breakdown of Confrontation Clause doctrine following the Supreme Court's 2004 decision in Crawford v. Washington. The Clause provides that in all criminal prosecutions, the accused "shall be entitled to be confronted with the witnesses against him." Overruling twenty-four years of precedent that equated the Clause with the statutory hearsay rule, Crawford promised doctrine that faithfully applied the Sixth Amendment's original meaning, was simple to administer, and protected criminal defendants against convictions secured through suspect evidence. Post-Crawford caselaw instead has delivered what Justice Scalia, the author of the Crawford decision, acknowledges as a jurisprudential "shambles."
Existing accounts attribute the failure of contemporary Confrontation Clause jurisprudence to the Supreme Court's embrace of originalism, flaws in the Court's historiography, and the Court's disregard for Crawford's principles in subsequent cases. This Article argues that Crawford's failure instead reflects an unsuccessful attempt to regulate evasion of the Confrontation Clause.
Rinat Kitai-Sangero and Yuval Merin (College of Law and Business and College of Management (Israel)) have posted Probing into Salinas's Silence: Back to the 'Accused Speaks' Model? (Nevada Law Journal, Vol. 15, 2015) on SSRN. Here is the abstract:
In the recent case of Salinas v. Texas [2013 U.S. LEXIS 4697], the Supreme Court was presented, for the first time, with the question of whether the Fifth Amendment's Self-Incrimination Clause allows the prosecution to use silence during pre-arrest, pre-Miranda police questioning as substantive evidence of guilt against a non-testifying defendant. The Court, however, avoided ruling on this question and instead decided the case on a technicality, holing that the government was allowed to introduce petitioner's silence in its case-in-chief because he had not explicitly invoked his rights under the Fifth Amendment.
The article argues that the Court's narrow interpretation of the privilege significantly undermines the Fifth Amendment's protection against self-incrimination. It also argues that the explicit invocation of the privilege or the lack thereof should only be considered when the admissibility of an accused' statement (preceded by silence) during police questioning is at issue at trial, not the admissibility of his silence.
Yuval Merin (College of Management (Israel)) has posted Lost between the Fruits and the Tree: In Search of a Coherent Theoretical Model for the Exclusion of Derivative Evidence (18 New Criminal Law Review 273) on SSRN. Here is the abstract:
The article proposes a new model for the exclusion of evidence obtained as an indirect result of police illegality, which aims to strike the appropriate balance between the intrinsic and the extrinsic objectives of criminal evidence — truth seeking vis-à-vis procedural values. To this end, the article critically examines the underlying theories and the doctrinal approaches to the admissibility of derivative evidence in three legal systems: the United States, the European Court of Human Rights, and Israel. Whereas deterrence, which is the sole justification under current U.S. law, is conceived of as the only theory that clearly warrants the suppression of derivative evidence, the rationales for exclusion that prevail in other jurisdictions — moral integrity and the protection of rights — are regarded as predominantly entailing the suppression of primary evidence. The article argues, however, that all three rationales may equally mandate the suppression of derivative evidence and that only a combination of the guiding principles could sustain a coherent theory for the exclusionary doctrine. It also contends that the different doctrinal approaches are largely based on the degree of each legal system’s adherence to considerations associated with the “crime control model,” and that a narrowly construed discretionary regime, based exclusively on due process considerations, is preferable to a rigid one, as it enables the courts to avoid the adverse consequences of exclusion.
Thursday, April 9, 2015
Jennifer E. Laurin (University of Texas School of Law) has posted Gideon by the Numbers: The Emergence of Evidence-Based Practice in Indigent Defense (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
A widespread consensus understands Gideon’s promise to be largely, sadly, unfulfilled. Yet in truth, we possess precious little hard evidence about the state of indigent defense nationally or the actual impact of indigent defense policies on the quality of representation received. A burgeoning but little-noted trend in the field could alter that state of affairs: the push toward adoption of evidence-based practice. Put most simply, evidence-based practice is a paradigm that aims to tether decision-making to empirical, rather than intuitive or experiential, evaluations of practice or policy options. Originating in medicine and already taking hold in isolated sectors of criminal justice policy, evidence-based practice is sprouting in the indigent defense field, spurred on by legislative reform, shifts in federal funding priorities, and the concerted energy of thought leaders in a number of states. The Essay shines a light on this trend through close examination of three states — North Carolina, Texas, and New York — in which indigent defense oversight commissions have placed the development of evidence-based practice at the front and center of their missions. Critically assessing the prospects for evidence-based indigent defense policymaking, the Essay shares in some of the enthusiasm evinced by evidence-based practice’s promoters, but also enumerates significant barriers to a full flowering of the paradigm, and cautions that an expanded evidence base might, ironically, pose barriers to furthering Gideon’s promise of equal access to counsel for the indigent.
Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Federal Sentencing 'Reform' Since 1984: The Awful as Enemy of the Good (44 Crime & Justice, 2015) on SSRN. Here is the abstract:
The federal sentencing system was conceived in one era and delivered in another. When the first bills that culminated in passage of the Sentencing Reform Act of 1984 were introduced, they aimed at reducing the worst excesses of indeterminate sentencing and achieving greater fairness, consistency, equality, accountability, and transparency in sentencing federal offenders. The overriding goal was reduction of unwarranted racial and other disparities. In the different political climate of the mid-1980s the federal sentencing commission instead sought to achieve greater rigidity and severity and to respond to the law-and-order policy preferences of the Reagan administration and the Republican-controlled US Senate. Probation, formerly the sentence of half of convicted federal offenders, was nearly eliminated as a stand-alone punishment. Lengths of prison sentences increased enormously. After the federal guidelines took effect, buttressed by a plethora of mandatory minimum sentence laws, the growth of the federal prison population far outpaced that of the states and the federal system became the extreme example nationally and internationally of the dangers of politicization of crime policy. The political climate may be changing and the federal system may change with it. Only time will tell.
Jenny E. Carroll (University of Alabama - School of Law) has posted The Jury as Democracy (66 Ala. L. Rev. 825 (2015)) on SSRN. Here is the abstract:
Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary citizens serving as jurors engage in unique acts of interpretation, redefining the very concept of the law in terms of their own lived experiences and expectations. In this, jurors serve a democratic function that exceeds their minimalist label as “mere fact finders.”
Laura I. Appleman (Willamette University College of Law) has posted A Tragedy of Errors: Blackstone, Procedural Asymmetry, and Criminal Justice (Harvard Law Review Forum, Vol. 128, p. 91, p. 2015) on SSRN. Here is the abstract:
A response to Daniel Epps's "The Consequences of Error in Criminal Justice," critiquing the author’s suggestion to model the criminal law more "equitably." I discuss the true costs of the criminal law on our most vulnerable members of society, particularly in a world of plea bargains. I conclude that with our system of rapid guilty pleas, vast race- and class-based outcome disparities, and harsh mandatory sentencing, we should still desire some asymmetry that favors the defendant, even for those who are guilty.
This is the introductory chapter to Mike Redmayne, Character in the Criminal Trial (Oxford University Press, 2015. The book examines the use of evidence of the defendant’s character in the fact-finding and sentencing stages of trial. In England and Wales the 2003 Criminal Justice Act radically expanded the admissibility of bad character evidence in guilt adjudication. The same Act also put more emphasis on criminal record and assessments of dangerousness when determining sentence. Character in the Criminal Trial provides an in-depth analysis of the legislation and its application, as well as of the underlying theoretical debates. While the focus is on English law, the policy issues are of broad relevance.
Kate Weisburd (University of California, Berkeley - School of Law - Youth Defender Clinic, East Bay Community Law Center) has posted Monitoring Youth: The Collision of Rights and Rehabilitation (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals. But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness. Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.
Wednesday, April 8, 2015
Mark R. Fondacaro, J.D., Ph.D. (John Jay College - CUNY) has posted Rethinking the Scientific and Legal Implications of Developmental Differences Research in Juvenile Justice (17 New Crim. L. Rev. 407 (2014)) on SSRN. Here is the abstract:
A recent string of Supreme Court cases now ensures that fewer juveniles will be subjected to our most extreme punitive sanctions, a sign of forward movement toward evolving standards of decency in our culture and jurisprudence. However, this article will argue that there are potential long-term costs associated with the interpretation of developmental differences research relied upon by the Court, not only to juveniles and adults accused and convicted of serious crimes, but to the credibility of science and the legitimacy of the criminal law. The article draws on cutting-edge scientific research to argue that juveniles should indeed be treated differently than we currently treat adults for criminal offenses. However, the primary reason we should treat them differently is not because they are developmentally immature (which many of them may indeed be), but because our retributive justifications for adult punishment do not and will not stand up to scientific scrutiny and the ongoing, inevitable advances in the behavioral and biological sciences. Adolescent immaturity is just one example of the growing number of diminished capacities taking aim at the legitimacy of retributive justifications for punishment. As philosophical and commonsense explanations for criminal behavior give way to scientific and empirical analyses across biological, psychological, and social levels, the justification for and responses to criminal responsibility will need to shift from retribution and just desert toward more forward-looking, consequentialist approaches with both juveniles and adults.
Michael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Fichte and the Psychopath: Criminal Justice Turned Upside Down on SSRN. Here is the abstract:
The question is whether the hard incompatiblist or the free will skeptic can make sense of an approach to criminal justice that maintains something like the distinction between punishment and preventive measures. I argue that Fichte's approach, wherein the natural response to any crime is outlawry, and subjection to punishment is an exception to outlawry, rather than the other way around, give us a useful way to look at criminal justice. Instead of seeing preventive measures that follow upon certain excuses (like insanity) as the exception and punishment the default, it is enlightening to see preventive measures, which I take to be our analogue of Fichte's outlawry, to be the default and punishment -- or rather what I call "correction" -- to be the exception. This view of things places limits upon punishment or correction that seem to me to call for a more humane system altogether.
Barbara E. Armacost (University of Virginia School of Law) has posted The Enforcement Pathologies of Immigration Policing on SSRN. Here is the abstract:
State and local police have become increasing involved in enforcing immigration law. While so called “immigration policing” is not new, as some scholars have claimed, it has increased in visibility and influence. This is due in large part to state and federal legislation that has broadened the footprint of immigration policing programs, and to increased federal funding, which has enabled state/federal cooperative programs to flourish. The federal government has created many of the immigration enforcement partnerships between federal agents and state and local police. Today, U.S. Immigration and Customs Enforcement lists no fewer than thirteen immigration enforcement cooperatives, including the 287(g) program and Secure Communities, recently renamed the “Priority Enforcement Program.” In addition, state legislatures have also been busy empowering state and local police to do immigration enforcement in their jurisdictions, including in Arizona where an important immigration policing provision was upheld by the Supreme Court in Arizona v. United States.