Wednesday, October 5, 2016
Sanjit Dhami and Ali al-Nowaihi (University of Leicester and University of Leicester - Department of Economics) have posted An Extension of the Becker Proposition to Non-Expected Utility Theory on SSRN. Here is the abstract:
In a seminal paper, Becker (1968) showed that the most efficient way to deter crime is to impose the severest possible penalty (to maintain adequate deterrence) with the lowest possible probability (to economize on costs of enforcement). We shall call this the Becker proposition (BP). The BP is derived under the assumptions of expected utility theory (EU). However, EU is heavily rejected by the evidence. A range of non-expected utility theories have been proposed to explain the evidence. The two leading alternatives to EU are rank dependent utility (RDU) and cumulative prospect theory (CP). The main contributions of this paper are: (1) We formalize the BP in a more satisfactory manner. (2) We show that the BP holds under RDU and CP. (3) We give a formal behavioral approach to crime and punishment that could have applicability to a wide range of problems in the economics of crime.
Thomas P. Crocker (University of South Carolina School of Law) has posted Dystopian Constitutionalism (University of Pennsylvania Journal of Constitutional Law, Vol. 18, No. 2, 2015) on SSRN. Here is the abstract:
This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, what differentiates dystopian constitutionalism is that it does not purport to provide a comprehensive way of understanding the Constitution. Rather, in the spirit of what Judith Shklar calls the “liberalism of fear,” it provides a way of organizing constitutional argumentation in opposition to states of government Americans might wish to avoid. It helps in understanding how to better implement constitutional principles into workable rules, not by holding up an ideal, but by urging us away from the negative alternative. In this respect, dystopian constitutionalism is focused less on obtaining an ideal state of governance than on achieving a workable system of self-governance that would avoid descent into tyranny. It has been particularly salient in criminal procedure and First Amendment cases, on which this article focuses.
Devon W. Carbado (University of California, Los Angeles (UCLA) - School of Law) has posted From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence (104 California Law Review, 2017, Forthcoming) on SSRN. Here is the abstract:
2014 to 2016 likely will go down as a significant if not watershed moment in the history of U.S. race relations. Police killing of African Americans has engendered further conversations about race and policing. Yet, in most of the discussions about these tragic deaths, little attention has been paid to a significant dimension of the police violence problem: the legalization of racial profiling in Fourth Amendment law. This legalization of racial profiling is not a sideline or peripheral feature of Fourth Amendment law. It is embedded in the analytical structure of the doctrine in ways that enable police officers to force engagements with African Americans with little or no basis. The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping black people and killing black people. This Article demonstrates precisely how by employing a series of hypotheticals to reveal the ways in which the extraordinary violence police officers often use against Africans Americans can grow out of the ordinary police interactions Fourth Amendment law empowers police officers to stage.
Tuesday, October 4, 2016
Despite a recent slew of highly-publicized incidents of police brutality, white Americans are still, for the most part, highly supportive and trusting of law enforcement officers. And United States laws — mostly drafted, enacted, and interpreted by white people — reflect that trust. The American legal system, from United States Supreme Court case law to municipal ordinances, is extraordinarily deferential to police officers’ actions and decisions, reflecting an oft-expressed belief that police officers are simply doing the best they can in a difficult job. The experience in many communities, particularly those primarily comprised of people of color, is very different — many people of color report that police officers routinely mistreat them, and there is much evidence to support these complaints. But our ingrained system of deference makes it far too difficult to hold police officers and departments accountable for those abuses.
This Article explores the history of deference afforded to police officers in the United States, and tracks the change from a country founded by people highly suspicious of law enforcement authority, to one with a legal system employing knee-jerk deference to police officers’ decisions and actions. In so doing, it explores why so many white people — who have rarely been the target of police misconduct — still place such trust in law enforcement, while people of color, who have endured decades of law enforcement suspicion, often do not.
Acts of civil disobedience, long used to provoke social change, ignite a tense clash between foundational rule of law principles and deep-seated beliefs in the right to air grievances. This article explores these tensions and, relying upon evolving concepts of capital jurisprudence, argues in favor of a new framework for evaluating the criminal culpability of civilly disobedient protesters. United States Supreme Court jurisprudence has repeatedly recognized that capital cases are distinct from non-capital proceedings. One rationale underlying the acknowledgement that “death is different” is that the complexity of the moral determination inherent in a sentence of death requires a judgment of community condemnation. This assessment of condemnation must be made individually and by a jury; it cannot be prescribed by rule of law or imposed by a judge. Though once a jurisprudential silo, the analytical influence of death penalty law is expanding and, while the difference between a sentence of death and one of imprisonment is unmistakable, distinctions between and among criminal offenses do not begin and end with the punishment. Acts of civil disobedience, though criminal, are unlike ordinary criminal acts. The competing values underlying acts of civil disobedience are similar in depth and complexity to the values underlying the individualization and community conscience requirements in capital proceedings. This article proposes that in criminal prosecutions of protesters, society, represented by the jury, should individually evaluate whether an act of civil disobedience offends collective values sufficiently to warrant the community condemnation implicit in a criminal conviction.
Research shows that a significant number of sexual assault occurs after victims consumed an excessive amount of intoxicants, rendering them substantially impaired and incapable of opposing non-consensual sexual acts. These assaults occur in various social and professional settings, including high schools, universities, the workplace, the military, bars, clubs, public streets and private homes.
Existing sexual assault statutes mostly criminalize sexual acts with involuntary intoxicated people, namely when the defendant administered the intoxicants to the victim. Most of them, however, do not directly prohibit sexual intercourse with voluntarily intoxicated victims whose intoxication was self-inflicted. While general prohibitions against sexual intercourse with physically and mentally incapacitated individuals may be used to prosecute sexual assaults of intoxicated victims, they offer only an incomplete solution to the problem and are ill suited to capture the distinct features of these cases.
|1||236||What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016 [2nd last week]
|2||222||When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 7 Sep 2016 [3rd last week]
|3||123||A Theory of Bribery
University of Virginia - School of Law
Date posted to database: 25 Aug 2016 [4th last week]
|4||106||How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan and Peter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016 [5th last week]
|5||104||Clarity in Criminal Law
Georgetown University Law Center
Date posted to database: 16 Sep 2016 [new to top ten]
|6||87||Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters
Craig Forcese and Leah Sherriff
University of Ottawa - Common Law Section and Independent
Date posted to database: 29 Aug 2016 [7th last week]
|7||81||Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules
University of Pennsylvania Law School
Date posted to database: 2 Sep 2016 [9th last week]
|8||70||What Is Criminal Law About?
Guyora Binder and Robert Weisberg
University at Buffalo Law School and Stanford Law School
Date posted to database: 3 Aug 2016 [10th last week]
|9||69||Fast & Furious: The Misregulation of Driverless Cars
Tracy Hresko Pearl
Texas Tech University School of Law
Date posted to database: 10 Aug 2016 [new to top ten]
|10||68||Punishing Sexual Fantasy
Willamette University - College of Law
Date posted to database: 9 Sep 2016 [new to top ten]
Monday, October 3, 2016
Thomas Stratmann and David Chandler Thomas (George Mason University - Buchanan Center Political Economy and Ball State University) have posted Dial 911 for Murder: The Impact of Emergency Response Time on Homicides on SSRN. Here is the abstract:
Several theories have been offered to explain the recent declines in violent crime rates in the United States. We hypothesize that technological innovations, which improved information transmission and shortened the response time between an aggravated assault incident and treatment, reduced the cost of saving lives and caused much of the decline in homicide rates in recent decades. Using difference-in-differences and event studies, we show that improvements in emergency services (9-1-1) caused significant decreases in homicide rates. Various falsification tests support these findings.
|1||521||Student Surveillance, Racial Inequalities, and Implicit Racial Bias
Jason P. Nance
University of Florida Levin College of Law
Date posted to database: 29 Aug 2016
|2||221||What Lurks Below Beckles
Leah M. Litman and Shakeer Rahman
University of California, Irvine School of Law and Independent
Date posted to database: 28 Aug 2016 [3rd last week]
|3||212||The Effect of Legislation on Fourth Amendment Interpretation
Orin S. Kerr
The George Washington University Law School
Date posted to database: 8 Aug 2016 [4th last week]
|4||193||The Constitutional Right to Collateral Post-Conviction Review
Carlos Manuel Vazquez and Stephen I. Vladeck
Georgetown University Law Center and University of Texas School of Law
Date posted to database: 16 Sep 2016 [9th last week]
|5||187||Profit-Driven Prosecution and the Competitive Bidding Process
Brigham Young University - J. Reuben Clark Law School
Date posted to database: 12 Aug 2016 [7th last week]
|6||186||The Drug Court Paradigm
Indiana University Maurer School of Law
Date posted to database: 12 Aug 2016
|7||180||Importance of State Law in Police Reform
Roger L. Goldman
Saint Louis University - School of Law
Date posted to database: 4 Aug 2016 [8th last week]
|8||166||Principled Policing: Warrior Cops and Guardian Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [new to top ten]
|9||158||Moonlighting: The Private Employment of Off-Duty Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [10th last week]
|10||148||Indians, Race, and Criminal Jurisdiction in Indian Country
Alexander Tallchief Skibine
University of Utah - S.J. Quinney College of Law
Date posted to database: 12 Aug 2016 [new to top ten]
Kenneth B. Nunn (University of Florida - Levin College of Law) has posted Ideology, Gentile and Pretrial Attorney Speech: A Response to Professor Tarkington (66 Fla. L. Rev. Forum 35 (2015)) on SSRN. Here is the abstract:
In this brief response to Professor Margaret Tarkington’s article Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity, (66 Fla. L. Rev. 1873 (2014)), I will sketch out an argument that the allocation of free speech rights between prosecutors and defenders, as well as the balance struck between the right of free speech and right to a fair trial, is determined chiefly by ideology and political considerations. In Part I, I will review Professor Tarkington’s description of the problems posed by current approaches used to regulate attorney pretrial speech. In Part Two, I will examine Professor Tarkington’s solution to these problems. In Part III, I will discuss why ideology trumps doctrine when it comes to attorney speech regulation in the criminal justice context. Finally, I conclude that any successful attempt to reform laws regulating attorney speech must expressly confront the ideological considerations that shape them.
Angela Dills, Sietse Goffard and Jeffrey Miron (Cato Institute, Cato Institute and Cato Institute) have posted Dose of Reality: The Effect of State Marijuana Legalizations (Cato Institute Policy Analysis No. 799) on SSRN. Here is the abstract:
In November 2012 voters in the states of Colorado and Washington approved ballot initiatives that legalized marijuana for recreational use. Two years later, Alaska and Oregon followed suit. As many as 11 other states may consider similar measures in November 2016, through either ballot initiative or legislative action.
Supporters and opponents of such initiatives make numerous claims about state-level marijuana legalization. Advocates think legalization reduces crime, raises tax revenue, lowers criminal justice expenditures, improves public health, bolsters traffic safety, and stimulates the economy. Critics argue that legalization spurs marijuana and other drug or alcohol use, increases crime, diminishes traffic safety, harms public health, and lowers teen educational achievement. Systematic evaluation of these claims, however, has been largely absent.
Adam Lamparello and Charles E. MacLean (Indiana Tech - Law School and Indiana Tech - Law School) have posted Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitution (Akron Law Review, Forthcoming) on SSRN. Here is the abstract:
Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”
Michael L. Perlin and Alison J. Lynch (New York Law School and Disability Rights New York) have posted 'To Wander Off in Shame': Deconstructing the Shaming and Shameful Arrest Policies of Urban Police Departments in Their Treatment of Persons with Mental Disabilities
Forthcoming chapter in Power, Humiliation and Conflict (Prof. Daniel Rothbart, George Mason University) on SSRN. Here is the abstract:
In this chapter, we will focus on the decisionmaking processes made "on the street" by police officers who choose to apprehend and arrest certain cohorts of persons with mental disabilities, rather than seeking other, treatment-oriented alternatives in dealing with them. There is robust valid and reliable literature demonstrating that certain methods of training programs designed for police officers -- the "Memphis model" of crisis intervention training (CIT) is the most well-known -- have resulted in dramatic reductions of arrests for "nuisance crimes" and have avoided contributing to the over-incarceration of this population. Yet, these approaches are far from widespread, so far appearing in only a handful of cities with any consistency, and as a result, populations of persons with mental disabilities in urban jails like Riker's Island continue to skyrocket. The means by which these arrests are effectuated reveal a consistent strategic deployment of humiliation as a means of controlling this stigmatized cohort of the population. The shaming nature of these encounters and arrests often leave already-vulnerable individuals feeling unheard, and potentially traumatized.
Sunday, October 2, 2016
Issue summaries are from ScotusBlog, which also links to papers:
- Shaw v. U.S.: Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.
- Bravo-Fernandez v. U.S.: Whether, under Ashe v. Swenson and Yeager v. United States, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.
- Buck v. Davis: Whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.
- Manuel v. City of Joliet: Whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.
Issue summaries are from ScotusBlog, which also links to papers:
- Lynch v. Dimaya: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.
- Nelson v. Colorado: Whether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.
Saturday, October 1, 2016
Jules Holroyd and Federico Picinali (University of Sheffield and London School of Economics & Political Science (LSE)) have posted Implicit Bias, Self-Defence, and the Reasonable Person (The Criminal Law’s Person, edited by Claes Lernestedt and Matt Matravers (OUP 2017 Forthcoming)) on SSRN. Here is the abstract:
The reasonable person standard is used in adjudicating claims of self-defence. In US law, an individual may use defensive force if her beliefs that a threat is imminent and that force is required are beliefs that a reasonable person would have. In English law, it is sufficient that beliefs in imminence and necessity are genuinely held; but the reasonableness of so believing is given an evidential role in establishing the genuineness of the beliefs. There is, of course, much contention over how to spell out when, and in virtue of what, such beliefs are reasonable.
In this chapter, we identify some distinctive issues that arise when we consider that implicit racial bias might be implicated in the beliefs in imminence and necessity. Considering two prominent interpretations of the reasonable person standard, we argue that neither is acceptable. On one interpretation, we risk unfairness to the defendant - who may non-culpably harbour bias. On the other, the standard embeds racist stereotypes. Whilst there are formulations of the defence that may serve to mitigate these problems, we argue that they cannot be avoided in the presence of racist social structures.
Friday, September 30, 2016
Catherine Fisk and L. Song Richardson (University of California, Irvine School of Law and University of California, Irvine School of Law) have posted Police Unions (George Washington Law Review, Vol. 85, Forthcoming) on SSRN. Here is the abstract:
Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and autocratic command structure. Part II examines the ways in which and the reasons why police unions have been obstacles to reform, focusing particularly on union defense of protections for officers accused of misconduct. Part III describes and analyzes 50 years’ worth of instances in which cities have implemented reforms to reduce police violence and improve police-community relations. All of them involved the cooperation of the rank and file, and many involved active cooperation with the union. Part IV proposes mild changes in the law governing police labor relations to facilitate rank and file support of the kinds of transparency, accountability, and constitutional policing practices that police reformers have been advocating for at least a generation. We propose a limited form of minority union bargaining – a reform that has been advocated in other contexts by both the political left and the political right at various points in recent history – to create an institutional structure enabling diverse representatives of police rank and file to meet and confer with police management over policing practices.
Erin L. Sheley (University of Calgary Faculty of Law) has posted Victim Impact Statements and Expressive Punishment in the Age of Social Media (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.