Tuesday, April 7, 2015
Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.
The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo.
Michael Anthony Cottone has posted Rethinking Presumed Knowledge of the Law in the Regulatory Age (Tennessee Law Review, Vol. 82, No. 137, 2015) on SSRN. Here is the abstract:
In this article, I will examine the doctrine of ignorantia legis, or presumed knowledge of the law, as it functions in the current milieu of American criminal justice, the age of the regulatory crime. Much ink has been spilled over this doctrine, and many pieces argue against ignorantia legis, hinting at normative values of fairness and economic efficiency. With this article, I intend to formalize and synthesize these discussions, approaching the problem explicitly from both perspectives. As a framework for evaluating the doctrine, I will apply both Lon Fuller’s idea of “internal morality of the law” and general principles of economic analysis of law. While I do not subscribe completely to either view for all purposes, my intent is to demonstrate that the current application of presumed knowledge of the law is extremely troublesome under at least two distinct methods of evaluating law, indicating a strong need for reconsideration of the doctrine. Part II of this article gives an overview of the doctrine of presumed knowledge of the law in the context of the regulatory state, ultimately arguing that it pervades the current legal system. Part III contains the two critiques of the doctrine based on Fuller’s “internal morality of the law” and on the economic analysis of law, determining that the current application of ignorantia legis is suspect under both. Finally, the Article concludes by synthesizing these arguments and offering a few thoughts on the doctrine moving forward.
Monday, April 6, 2015
Christopher Slobogin (Vanderbilt University - Law School) has posted Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism (William & Mary Law Review, 2015) on SSRN. Here is the abstract:
Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice — to wit, retributivism and adversarialism. This article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system where retribution is no longer the lodestar of criminal punishment, and where party-control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution (as in the salad days of indeterminate sentencing), and if it were filtered through a system that is inquisitorial (i.e., judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.
Karen O'Connell (University of Technology Sydney, Faculty of Law) has posted Bad Boys’ Brains: Law, Neuroscience and the Gender of ‘Aggressive’ Behavior (Gendered Neurocultures: Feminist and Queer Perspectives on Current Brain Discourses, Zaglossus, Vienna, 2014 (eds. Sigrid Schmitz and Grit Hoppner)) on SSRN. Here is the abstract:
As law begins to integrate neuroscientific research about behavior, brain-based models of identity are emerging. In these models, behaviors such as aggression, swearing and impulsivity are increasingly categorized as brain-based disabilities, raising questions about how law should respond.
In the public institution of school, an increasing cohort of students are exhibiting what would once have been considered “bad” behavior and a trigger for exclusion from school. Yet with this rapidly expanding knowledge about the biological bases of behavior, students with challenging behavior can increasingly invoke the protection of disability discrimination laws. Such behavior may also be viewed through a criminal lens, as “anti-social” behavior, which ultimately tends to exclusion from public institutions rather than inclusion. Should law take a protective or punitive stance towards people exhibiting “anti-social” behaviors if those behaviors have a biological source?
Jane R. Bambauer and Toni M. Massaro (University of Arizona - James E. Rogers College of Law and University of Arizona College of Law) have posted Outrageous and Irrational (100 Minnesota Law Review, (2015 Forthcoming)) on SSRN. Here is the abstract:
A wealth of scholarship comments on enumerated and unenumerated fundamental rights, such as freedom of speech, the right to marital privacy, and suspect classifications that trigger elevated judicial scrutiny. This Article discusses the other constitutional cases - the ones that implicate no fundamental right or suspect classification, but nevertheless ask for relief from uncategorizable abuses of power. These cases come in two forms: claims that the government’s conduct is outrageous (satisfying the “shocks the conscience” test), or claims that the government’s conduct is irrational (failing the rational basis test). Both forms trigger highly deferential judicial review and serve similar purposes. But they are on divergent trajectories. Courts have cautiously expanded use of the rational basis test in contexts as varied as gay marriage, hair braiding, and coffin sales. The outrageousness test, by contrast, is universally maligned and mistrusted.
Jason Kreag (University of Arizona Rogers College of Law) has posted Going Local: The Fragmentation of Genetic Surveillance (Boston University Law Review (2016 Forthcoming)) on SSRN. Here is the abstract:
The FBI’s two-decade-long dominance of the use of genetic surveillance for law enforcement purposes is ending. In its place, local police departments are creating DNA databases that operate outside of the FBI’s national DNA database network. These local databases, which until now have remained unexamined, promise local law enforcement agencies freedom from the federal laws and regulations that govern the FBI’s national network. This Article relies on original qualitative empirical research to describe why agencies created local databases and how these databases operate. It finds that while local DNA databases offer promise as a crime-solving tool, they generate harms that so far have been ignored. These harms include exacerbating racial inequities, threatening privacy and dignity interests, and undermining the legitimacy of the police. Because law enforcement agencies have not internalized these harms, the self-imposed regulations that currently restrain law enforcement’s use of local DNA databases are insufficient. This Article proposes several modest, yet effective, reforms that will minimize the harms generated by local DNA databases, while at the same time preserving law enforcement’s ability to wield this tool.
Kathryne M. Young and Christin L. Munsch (Stanford University - Bill Lane Center for the American West and University of Connecticut) have posted Fact and Fiction in Constitutional Criminal Procedure (South Carolina Law Review, Vol. 66, No. 445, 2014) on SSRN. Here is the abstract:
This Article empirically examines questions of rights knowledge and rights assertion in order to better understand the processes that contribute to people's assertions of their Fourth, Fifth, and Sixth Amendment rights. Using quantitative and qualitative results from survey data, we test some of the assumptions about rights knowledge and rights assertion that are embedded in United States Supreme Court opinions. Our findings suggest that not only do people, by and large, not know their rights, but that when they try to figure out which rights they possess, the current procedural regime leads them to perform even worse than chance. Rights knowledge is not correlated with demographic factors such as race, social class, or even prior experience as a subject of criminal investigation.
Sunday, April 5, 2015
|1||1,899||Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence
Kent Roach and Craig Forcese
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section
Date posted to database: 5 Feb 2015
|2||720||Rethinking Presumed Knowledge of the Law in the Regulatory Age
Michael Anthony Cottone
Date posted to database: 24 Mar 2015 [new to top ten]
|3||525||California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State
Marina Fisher, Nathaniel Miller, Lindsay Walter andJeffrey Selbin
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law
Date posted to database: 4 Feb 2015 [2nd last week]
|4||270||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
|5||204||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 [3rd last week]
|6||158||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 [5th last week]
New York University School of Law
Date posted to database: 1 Mar 2015
|8||150||Beyond a Reasonable Disagreement: Judging Habeas Corpus
Date posted to database: 25 Jan 2015 [6th last week]
|9||143||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 [8th last week]
|10||138||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 [9th last week]
Friday, April 3, 2015
Kathryne M. Young (Stanford University - Bill Lane Center for the American West) has posted Outing Batson: How the Case of Gay Jurors Reveals the Shortcomings of Modern Voir Dire (Willamette Law Review, Vol. 48, No. 243, 2011-12) on SSRN. Here is the abstract:
Although scholarly attention has been devoted to the argument that Batson v. Kentucky should apply to gay and lesbian jurors, little or no attention has been paid to how these challenges would work in practice. This article is, foremost, a thought experiment about how peremptory challenges would function if Batson were applied to sexual orientation. I examine several scenarios to understand the practical implications of this change and conclude that it would be ineffective at best and socially appalling at worst. My analysis reveals a fundamental problem with the current peremptory system: it fails to take into account the complex nature of social identity and the psychological realities of human interaction and bias. The goal of equal protection, I suggest, would be better served if changes were made to the existing peremptory challenge system, such as reducing the number of challenges allowed and requiring a Batson-style explanation for every peremptory challenge exercised.
Michael L. Perlin (New York Law School) has posted 'There's a Dyin’ Voice within Me Reaching Out Somewhere': How TJ Can Bring Voice to the Teaching of Mental Disability Law and Criminal Law (3 Suffolk U. L. Rev. Online 37 (2015)) on SSRN. Here is the abstract:
In this article, I discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this is all positive and supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship and in “real life,” I also share some information that is far from optimistic with regard to the way that TJ is being reacted to by law students and law teachers. I am deeply saddened by this, but feel that this must also be “on the table” in any reflective conversation about TJ. I conclude that TJ adherents create strategies so that the substantive insights and perspectives contained in TJ-related scholarship become known to the legal academy and to practitioners in this area of law and policy. I also believe it is necessary to consider the adoption of TJ from a generational/career development perspective; what does the conventional scholarship/teaching mode say to both junior and senior law professors who want to do TJ-related work?
Thursday, April 2, 2015
Chris Jenks (Southern Methodist University - Dedman School of Law) has posted Sentencing Complexities in National Security Cases (Federal Sentencing Reporter, Vol. 27, No. 3, 2015) on SSRN. Here is the abstract:
Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.
This article examines the sentencing complexities in military national security cases, first defining a national security case and then distinguishing Department of Defense prosecutions from those by the Department of Justice. Following that, this article explains the challenges national security cases present, including the introduction of classified information and the difficulty in correlating degrees of potential harm to national security to a level of punishment.
Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted Explaining the Asymmetry between Mistakes of Law and Mistakes of Fact (Forthcoming Jurisprudence Vol. 6, No. 1, pp. 95-111, 2015) on SSRN. Here is the abstract:
Gideon Yaffe’s "Excusing Mistakes of Law" seeks to explain "the asymmetry between the excusing force of mistakes of fact and law." In this paper, I offer a competing explanation of the asymmetry and criticize Gideon's explanation. Behind some of the specific issues concerning mistake of fact and mistake of law lie more fundamental questions about the nature of law and about the relation between law and morality. Underlying Gideon's proposal seems to be an assumption that the legal domain has an internal structure parallel to that of the moral domain: legal reasons, legal obligations, legal excuses, and so on bear the same relations to each other that, within the moral domain, moral reasons, moral obligations, moral excuses, and so on bear to each other. In particular, Gideon relies on the assumption that just as, absent special circumstances, one who acts on morally wrong principles is, for that reason, morally blameworthy or morally deserving of reproach or punishment, so one who acts on legally wrong principles is, for that reason, legally deserving of punishment.
Wednesday, April 1, 2015
Saira Mohamed (University of California, Berkeley - School of Law) has posted Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law (Yale Law Journal, Vol. 124, No. 5, 2015) on SSRN. Here is the abstract:
The historian Raul Hilberg once observed that we would all be happier if we believed the perpetrators of the Holocaust were crazy. But mass atrocity is never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the madman or the deviant, but often we will find instead an ordinary person, one who commits a crime at the barrel of a gun or who succumbs to the awful indirect coercion that pervades entire communities in the throes of transformative violence. In the ashes of atrocity, criminal courts have been created, but many scholars have come to think that the basic structures of criminal law — built to address willful deviance from society’s norms — are inappropriate for dealing with the complex context of mass atrocity crimes.
Zachary Bolitho (Campbell University - Norman Adrian Wiggins School of Law) has posted Specifically Authorized by Binding Precedent Does Not Mean Suggested by Persuasive Precedent: Applying the Good Faith Exception after Davis v. United States on SSRN. Here is the abstract:
A number of federal circuit courts have recently refused to apply the Fourth Amendment exclusionary rule to evidence obtained from GPS vehicle trackers that were installed and monitored without a warrant before United States v. Jones. Those courts have largely reached that result by invoking Davis v. United States, which held the exclusionary rule to be inapplicable where an officer relied on binding appellate precedent that was later overruled. More specifically, the circuit courts have viewed the Supreme Court’s 1983 decision in United States v. Knotts (addressing “beeper” tracking devices) as binding precedent that specifically authorized the warrantless installation and monitoring of GPS vehicle trackers prior to Jones.
Jennifer Breen and John Mills (Cornell University - Law School and Saint Louis University School of Law) have posted Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama (American Criminal Law Review, Vol. 52, No. 2, 2015) on SSRN. Here is the abstract:
Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system. This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences. In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing. This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases. At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant. Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”
Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details. This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area. Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.
Tuesday, March 31, 2015
Michael L. Smith has posted Prior Sexual Misconduct Evidence in State Courts: Constitutional and Common Law Challenges (American Criminal Law Review, Vol. 52, No. 2, 2015) on SSRN. Here is the abstract:
Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant’s propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.
While commentators have written in great detail about federal rules regarding sexual misconduct propensity evidence, comparatively little attention has been paid to analogous rules at the state level. And while much of the commentary on rules of evidence permitting the introduction of prior sexual misconduct focuses on whether these rules are good or bad policy, questions of whether the rules violate due process rights or separation-of-powers requirements often fall by the wayside.
Sarah Freeman has posted Ensuring Effective Counsel for Parents: Extending Padilla to Termination of Parental Rights Proceedings (Hofstra Law Review, Vol. 42, No. 303, 2013) on SSRN. Here is the abstract:
The increase in the number of incarcerated women, combined with the severe effects of ASFA's 15/22 rule, has dramatically increased the risk that a incarcerated mother face a termination of her parental rights. Currently, existing ethical and statutory protections have been insufficient to protect these parents’ rights to their children. However, after Padilla v. Kentucky, it is likely that there is a Sixth Amendment obligation on criminal defense attorneys to advise their clients about the effect of the criminal process on a TPR proceeding. This advice should not be limited to a mere suggestion that clients seek legal advice from an attorney specializing in TPR law. Instead, criminal defense attorneys are obligated to protect this unique population by providing advice and counsel throughout the criminal proceeding to their clients concerning how best to protect the family unit from TPR proceedings.
Margaret Ellen Johnson (University of Baltimore - School of Law) has posted Changing Course in the Anti-Domestic Violence Legal Movement: From Safety to Security (Villanova Law Review, Vol. 60, No. 1, 2015) on SSRN. Here is the abstract:
This Article examines how the pursuit of domestic violence policy’s limited goal of safety, primarily focused on short-term physical separation to decrease physical intimate partner violence, is both too broad and too narrow a goal. Although being safe and free from violent harm is important, there is a difference between the woman subjected to abuse choosing to employ actions to be free of harm, and the state requiring the woman to physically separate from her abusive partner. In addition, there is a difference between the many ways she may act in order to reduce harm to herself -- such as having control over her own finances -- and the almost one-size-fits-all way in which the state says she should act to create safety -- physically separating from her partner. As a result, a woman’s own agency and dignity can be undermined in pursuit of what is deemed safe by others. This is despite the research that shows supporting a woman's agency is one of the best ways to decrease domestic violence.
Katharine K. Baker (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Why Rape Should Not (Always) Be a Crime (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
This article advances a novel and controversial argument, that the criminal law is simply not up to the task of policing sexual assault and has undermined the very anti-rape norms that reformers intended that law to cultivate. The on-going initiative to curb the prevalence of sexual misconduct on college campuses abandons the criminal law and uses discrimination doctrine to dislodge the norms that criminal rape reform tried, but failed, to transform. It is necessary because the rape reform movements of the 1970s and 80s asked too much of the criminal law. Rape reformers tried to make a woman’s willingness to have sex – her consent – the centerpiece of the rape inquiry. They wanted to upend a norm that validated men’s sense of entitlement to sex. While these efforts to shift norms may have gotten the theory of rape right, they failed to appreciate inherent limitations in the criminal process. The criminal burden of proof for non-consent is too high for an effective conviction rate for sexual assaults that do not involve force. The criminal stigma associated with rapists, reified by popular “tough-on-rapist” measures, undermines attempts to criminalize commonplace behavior. And the complicated relationship between rape’s injury, women’s agency and the criminal law means that many women are unwilling to see themselves as rape victims and especially unwilling to invoke the criminal process to vindicate their injury. Discrimination doctrine avoids all these problems, but still allows for the policing of predatory male behavior. Effective enforcement of discrimination doctrine could, in turn, affect more lasting change to the social norms that condone men’s appropriation of sex, and thus pave the way for comprehensive enforcement of the criminal law as reformed. The key will be treating what is happening on college campuses as something other than rape. The de facto monopoly of criminal law over rape should end not despite its effects on social norms, but because of it.