Monday, August 25, 2014
Orin Kerr has this post at The Volokh Conspiracy, discussing a recent district court case holding that the act does not apply but concluding, "As much as I favor narrow readings of the CFAA, I think the court was incorrect. Unfortunately, the CFAA is so broad it includes pretty much every computer, connected to the Internet or not."
Robert E. Wagner (City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law) has posted Criminal Corporate Character (65 Florida Law Review 1293 (2013)) on SSRN. Here is the abstract:
In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals.
Rachel E. Barkow and Mark William Osler (New York University School of Law and University of St. Thomas - School of Law (Minnesota)) have posted Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal (University of Chicago Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them. Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked. As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.
The use of the pardon power is a necessary element in a fully-functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways. This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.
Sunday, August 24, 2014
From The New York Times:
The parole board wrote to Mr. Chapman, 59, that it had concluded that if he were to be released, he would again break the law.
“This victim had displayed kindness to you earlier in the day,” it added, “and your actions have devastated a family and those who loved the victim.”
At his previous hearing in 2012, Mr. Chapman described how Mr. Lennon had agreed on the day of the killing to autograph an album cover for him. “He was very kind to me,” Mr. Chapman said.
|1||353||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||268||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014
|3||201||Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Scott Cunningham andManisha Shah
Baylor University and UCLA School of Public Affairs
Date posted to database: 19 Jul 2014
|4||132||Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons
Joan Petersilia and Francis T. Cullen
Stanford University and University of Cincinnati
Date posted to database: 24 Jun 2014
|5||132||The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
University of Pennsylvania Law School
Date posted to database: 19 Jul 2014 [6th last week]
Dawinder S. Sidhu
University of New Mexico - School of Law
Date posted to database: 12 Jul 2014 [5th last week]
|7||125||White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence
Lucian E. Dervan
Southern Illinois University School of Law
Date posted to database: 28 Jun 2014
|8||123||Morse, Mind, and Mental Causation
Michael S. Pardo and Dennis Patterson
University of Alabama School of Law and European University Institute
Date posted to database: 17 Jul 2014 [9th last week]
|9||118||State Law Reporting and Disclosure Mandates Under ERISA
Law Offices of Albert Feuer
Date posted to database: 16 Jul 2014 [8th last week]
|10||104||The Combatant's Privilege in Asymmetric & Covert Conflicts
Jens David Ohlin
Cornell University - School of Law
Date posted to database: 31 Jul 2014 [new to top ten]
Saturday, August 23, 2014
Thousands of American cities and towns are responding to social problems like bullying, drug abuse, and criminality by passing ordinances that hold individuals responsible for the wrongful acts of their family members and friends. For example, parental liability ordinances impose sanctions on parents when their children engage in bullying or other targeted behaviors; mandatory terms in rental housing leases require the eviction of tenants whose family members, friends, or guests engage in unlawful acts; and nuisance ordinances require evictions when a threshold number of calls to police is exceeded, even though calls are often related to another person’s wrongful or abusive behavior.
Cities typically rely on home rule authority to pass these ordinances, and these ordinances in turn create new “home rules” for the households affected. These new home rules are a form of third-party policing, and through them, the city is becoming an increasingly significant player in governing families and regulating intimate spaces.
Friday, August 22, 2014
Scott J. Glick has posted Consequence, Weapons of Mass Destruction, and the Fourth Amendment's 'No-Win' Scenario (Indiana Law Journal, Vol. 90, No. 1, 2014) on SSRN. Here is the abstract:
What is the role that consequence should play in a Fourth Amendment analysis? Should our view of reasonableness be affected by the nature of the consequence that the government seeks to prevent, such as stopping a terrorist from using a weapon of mass destruction (WMD)? While some may consider the use of a WMD by a terrorist to be a plot for an action movie, since the September 11, 2001, attacks, there have been increasing indications that malicious actors or organizations are attempting to obtain a WMD in order to cause massive devastation or catastrophic loss of life. Aside from advancements in technology that may enable the government to deploy an effective system of WMD sensors in the future, one of the most effective methods that the government could employ to locate a suspected terrorist who intended to use a WMD in an American city would be to monitor the terrorist’s communications.
But what if the government did not know the specific telephone or e-mail account that the suspected terrorist was using, even though it had specific and credible information that he intended to assemble and use the WMD sometime within the next 30 to 45 days?
This Article examines and evaluates an increasingly popular account of the Mistake of Law doctrine. Deeply ingrained in American criminal law, the doctrine is notoriously unclear in its scope, content, and application. A growing number of legal theorists have criticized its traditional Holmesian account; legal moralists in particular have argued that this account is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as effectively as a negligence regime otherwise would, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism Holmes’s general jurisprudence.
Kent Scheidegger has this post at Crime & Consequences, commenting on a recent Ninth Circuit case reversing a district court's habeas grant without deciding whether innocence without an accompanying constitutional violation can justify relief. He suggests that the Ninth Circuit's conclusion that innocence had not been shown is a common pattern in the cases raising the issue.
Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “Read up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass.
Thursday, August 21, 2014
Typically, a DUI stop may include an officer administering a series of field sobriety tests followed by a breath test to measure a driver's blood alcohol concentration (BAC) if the officer suspects the driver is under the influence of alcohol.
However, some drivers may refuse to undergo the test, opting instead to take the penalty for refusing to submit to a BAC test, which in many states includes an automatic loss of driver's license. That's where the "No Refusal" Weekend program comes into play.
During a DUI "No Refusal" Weekend, law enforcement will require drivers who refuse breath tests to submit instead to a more intrusive blood test -- in essence, eliminating their ability to refuse to have their BAC measured. How does this work?
. . .
According to NHTSA, the "No Refusal" Weekend program works by facilitating the availability of judges and magistrates to speedily sign warrants, allowing for the blood draws to occur.
Wesley Oliver (Duquesne Law School) has posted Charles Lindbergh, Caryl Chessman, and the Exception Proving the (Potentially Waning) Rule of Broad Prosecutorial Discretion on SSRN. Here is the abstract:
Broad prosecutorial discretion is generally accepted by courts and legislatures and is widely blamed by academics for the explosion in the American prison population. Statutory revisions and judicial interpretations of kidnapping law, however, provide an exception to the deference generally given to prosecutors. The very high-profile execution of Caryl Chessman quite publicly raised the question of whether kidnapping, then a capital crime in California, was defined so broadly as to permit a prosecutor to obtain the death penalty for a number of non-capital crimes, such as robbery and rape. Chessman’s case raised widespread concern about the unchecked power of prosecutors and prompted reform of the specific law that led to his execution – kidnapping. For roughly the past two decades, academics have renewed concerns about unlimited prosecutorial discretion, but no single case has drawn attention to the cause. The more generalized problem in our prison system, however, has not escaped the public’s notice. This country’s epidemic of incarceration has raised considerable alarm, something academics attribute to the broad scope of criminal laws empowering prosecutors to seek prison sentences of ever-increasing lengths. This last term, in two virtually unnoticed cases, the Supreme Court appeared to take up the invitation of the academy to rein in the power of prosecutors by limiting the scope of traditional forms of criminal liability. Whether the Supreme Court’s recent incursion into traditionally state doctrines of criminal liability is a bell weather event or not remains to be seen, but the Court has traditionally avoided considering long-existing doctrines of criminal law and the academic criticism of criminal law’s broad scope extends far beyond the aspects of complicity and felony murder the Court considered last term.
Andrew E. Taslitz and Stephen E. Henderson (American University - Washington College of Law and University of Oklahoma College of Law) has posted Protecting Privacy in Third Party Records: Can the Grand Jury Help? (American University Law Review, Forthcoming) on SSRN. Here is the abstract:
The newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR) fill a constitutional hole in privacy protection by rejecting the third party doctrine. In place of that historic federal constitutional void, LEATPR implements four methods. First, some level of justification is required for law enforcement access to records. This level of justification is not uniform, but instead varies with the degree of privacy of the desired record. Second, where obtained records have a relatively high degree of privacy, LEATPR requires providing notice to the focus of those records. Third, LEATPR requires that obtained records be protected against unauthorized access and distribution. And, fourth, the legislature must create accountability mechanisms to guarantee these substantive protections. But LEATPR exempts from its requirements access to records via a grand jury subpoena, and, perhaps more surprisingly, potentially exempts access via a “functionally equivalent prosecutorial subpoena.” The impetus for this exemption was a concern that applying LEATPR’s requirements to the grand jury, or even to its functional equivalent, is unnecessary and might radically undermine longstanding systems of criminal investigation in perhaps unforeseeable ways. This essay addresses whether this exception can be justified by reviewing each of the four main regulatory mechanisms of LEATPR and questioning whether grand jury procedures provide an adequate substitute. In finding that they do not, the essay indicates how to improve the grand jury process.
Doug Berman at Sentencing Law & Policy excerpts a newspaper article on this recent phenomenon. From the excerpt:
Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.
Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown
Kent Roach (University of Toronto - Faculty of Law) has posted Terrorism (in Markus Dubber and Tatjana Hornle, eds., Oxford Handbook of Criminal Law (2015) ch 36, Forthcoming) on SSRN. Here is the abstract:
This chapter examines how criminal law has expanded to deal with the challenges of terrorism and whether in doing so it has sacrificed its fundamental values. The first part of this chapter outlines a variety of less restrained alternatives to the criminal law that have been used to respond to terrorism including military and administrative detention and targeted killing in order to place the expansion of the criminal law in context. he bulk of the chapter will examine how criminal law has expanded to deal with the challenges of preventing terrorism and how this may undermine the integrity of the criminal law. Topics examined include definitions of terrorism, extra-territorial jurisdiction and the integration of administrative blacklists into the criminal law. The understandable desire to prevent terrorism has created an incentive for legislatures to stretch the prohibited act of criminal laws so that they apply well before traditional inchoate forms of liability such as attempts, conspiracy and incitement. The chapter will also examine the limited capacity of fault requirements to restrain broad definitions of the criminal law. The limited role of defences, especially entrapment, will be examined as well the pressures that broad terrorism offences place on principles of proportionate punishment. Criminal laws against terrorism reveal more general weaknesses in modern criminal law especially with respect to the legislature’s ability to define criminal acts broadly and fault requirements narrowly.
Wednesday, August 20, 2014
Christopher Slobogin (Vanderbilt University - Law School) has posted Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis' (William & Mary Bill of Rights, Vol. 23, 2014) on SSRN. Here is the abstract:
The Supreme Court’s decision in Hall v. Florida holds that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, the Court “scientized” the definition of intellectual disability. This article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis — a requirement that groups that are scientifically alike be treated similarly for culpability purposes — as a means of implementing the scientization process.
Paul Cassell has this post at The Volokh Conspiracy. In part:
Some commentators have assumed that the officer could be charged federally if he was negligent or reckless in assessing the need to use deadly force. For a federal civil rights prosecution, that is untrue. A federal civil rights prosecution in the Brown shooting will only be successful if the defendant acted with specific intent to deprive Brown of his rights.