CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

A Member of the Law Professor Blogs Network

Monday, August 11, 2014

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 346 The Failure of Mitigation? 
Robert J. SmithSophie Culland Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 [2nd last week]
2 342 Katz Has Only One Step: The Irrelevance of Subjective Expectations 
Orin S. Kerr 
George Washington University - Law School 
Date posted to database: 13 Jun 2014 [1st last week]
3 311 Gifts, Hospitality & the Government Contractor 
Jessica Tillipman 
The George Washington University Law School 
Date posted to database: 18 Jul 2014 [new to top ten]
4 254 Sales Suppression as a Service (SSaaS) & the Apple Store Solution 
Richard Thompson Ainsworth 
Boston University - School of Law 
Date posted to database: 6 Jun 2014 [3rd last week]
5 240 The Consequences of Error in Criminal Justice 
Daniel Epps 
Harvard Law School 
Date posted to database: 9 Jul 2014 [4th last week]
6 121 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 [5th last week]
7 115 Moneyball Sentencing 
Dawinder S. Sidhu 
University of New Mexico - School of Law 
Date posted to database: 12 Jul 2014 [new to top ten]
8 113 State Law Reporting and Disclosure Mandates Under ERISA 
Albert Feuer 
Law Offices of Albert Feuer 
Date posted to database: 16 Jul 2014 [6th last week]
9 101 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 [8th last week]
10 92 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 [new to top ten]

August 11, 2014 | Permalink | Comments (0)

Sunday, August 10, 2014

"May the government try John Hinckley for James Brady’s murder?"

Eugene Volokh has this interesting post at The Volokh Conspiracy, discussing double jeopardy issues and the year-and-a-day rule.

August 10, 2014 | Permalink | Comments (0)

Saturday, August 9, 2014

"Minnesota Expungement Bill Example of Bipartisan Success"

From ACSBlog, by the legislation's sponsor:

It is very difficult for a former offender to integrate into our communities when an overwhelming majority of employers refuse to hire anyone with an arrest or criminal record, regardless of how long ago it was or the crime’s relevance to the position for which an applicant is being considered. A key provision in my expungement bill will change that. It requires business screening services to delete expunged records if they know a criminal record has been sealed, expunged or is the subject of a pardon.

In addition, the expungement bill passed in 2014 will allow people convicted of misdemeanors, gross misdemeanors and some low-level felonies to get their records sealed. My expungement bill maintains public safety while providing redemptive justice for all Minnesotans. Sealing or limiting access to criminal records is an important component in successful reintegration into society.

August 9, 2014 | Permalink | Comments (0)

Friday, August 8, 2014

"New York mayor formally drops appeal in NYPD stop-and-frisk lawsuit"

From Jurist:

New York City on Wednesday formally dropped [motion, PDF] the city's appeal of rulings in lawsuits [CCR backgrounder] involving the New York Police Department's (NYPD) [official website] use of stop-and-frisk tactics. Mayor Bill De Blasio's[official website] administration agreed to end the lawsuit against the NYPD after reaching a settlement [New York Post report] requiring three years of NYPD oversight by a court-appointed monitor. The city filed a motion to withdraw its appeal in the US Court of Appeals for the Second Circuit [official website].

August 8, 2014 | Permalink | Comments (0)

Sklansky on Privacy and the Fourth Amendment

Sklansky davidDavid Alan Sklansky (Stanford Law School) has posted Two More Ways Not to Think About Privacy and the Fourth Amendment (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

August 8, 2014 | Permalink | Comments (0)

Sankoff & Funk on Confinement as a Crime

Peter Sankoff and Adrienne Funk (University of Alberta - Faculty of Law and University of Alberta - Faculty of Law) have posted Why Should a Confinement Need to Be 'Significant' to Attract Liability? A Proposal to Clarity and Reform the Current Approach to Forcible Confinement (Criminal Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

On the surface, the crime of forcible confinement set out in s 279(2) of the Criminal Code of Canada is straightforward enough. Nonetheless, because of some strange turns in the jurisprudence, the common law now requires confinement to be of a “significant” duration before a conviction can be imposed, even though the statute says nothing along these lines. This article explores how this confusing state of affairs came to be, considers the ramifications of this development, and proposes a solution.

August 8, 2014 | Permalink | Comments (0)

Thursday, August 7, 2014

"Detroit-Area Man Convicted of Murdering Woman Who Banged on His Door"

From The New York Times:

Mr. Wafer, an airport maintenance worker who lived alone, claimed self-defense in the shooting, testifying that he was awakened about 4:30 a.m. by violent pounding on his front and side doors. He panicked, he said, and within minutes scrambled for his shotgun, believing that someone was attempting to break into his home, a small bungalow in Dearborn Heights, just across the city line from Detroit.

But after less than two days of deliberations, the jury appeared to agree with the prosecution that Mr. Wafer had acted recklessly, killing Ms. McBride with a single shotgun blast through his locked screen door rather than calling the police and seeking help.

August 7, 2014 | Permalink | Comments (0)

Turner on Interstate Conflict and Cooperation

Jenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Interstate Conflict and Cooperation in Criminal Cases: An American Perspective (European Criminal Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:

Over the last decade, the European Union has adopted legislation that calls for the mutual recognition of arrest warrants, investigation orders, and penal judgments. These laws have aimed to strengthen the Union’s response to transnational crime, and EU policymakers are currently considering legislation to further harmonize the Union's law enforcement efforts. This Article compares these developments within the EU to the U.S. legal framework on mutual recognition in criminal matters. It examines the individual, state and systemic interests that U.S. state courts have considered in deciding whether to recognize other states' judgments, warrants, or investigative actions. These competing interests have produced relatively uniform rules on extradition, but much more diverse and fragmented laws concerning the gathering of evidence, the admissibility of evidence, and the recognition of foreign penal judgments. 

Continue reading

August 7, 2014 | Permalink | Comments (0)

Conflicting views on the Willingham execution

Jonathan Adler has this post at The Volokh Conspiracy commenting on a recent article and concluding that the "materials may not make a compelling case that Willingham was innocent, but it certainly does show there should have been reasonable doubt about his guilt." Crime & Consequences collects its prior posts disputing the claim.

August 7, 2014 | Permalink | Comments (0)

Gordon on The Forgotten Nuremberg Hate Speech Case

Gregory S. Gordon (University of North Dakota - School of Law) has posted The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law (Ohio State Law Journal, Vol. 75, No. 3, 2014) on SSRN. Here is the abstract:

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment against Reich Press Chief Otto Dietrich, who was convicted despite the fact that the charged language did not directly call for violence. So why is the Dietrich judgment, a relatively obscure holding, issued sixty-five years ago, so significant today, after the development of a substantial body of ad hoc tribunal jurisprudence on atrocity speech? It is because the seemingly antithetical holdings in Streicher and Fritzsche are more than just the subject of academic discourse. The next generation of atrocity speech decisions, it turns out, is at loggerheads about the relationship between hate speech and persecution as a crime against humanity.

Continue reading

August 7, 2014 | Permalink | Comments (0)

Wednesday, August 6, 2014

Wilkes on Habeas Corpus History

Wilkes donaldDonald E., Jr. Wilkes (University of Georgia Law School) has posted Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 (54 Am. J. Legal Hist. 200 (2014)) on SSRN. Here is the abstract:

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Continue reading

August 6, 2014 | Permalink | Comments (0)

Bartels on Sentencing Data in Australia

Lorana Bartels (University of Canberra - School of Law and Justice) has posted Sentencing Statistics, Sentencing Councils and the Quest for Data in the Australian Capital Territory (In P Easteal (ed) Justice Connections (Cambridge Scholars Publishing, 2013) pp 60-84) on SSRN. Here is the abstract:

This chapter examines the collection and dissemination of sentencing data in Australia, with particular emphasis on the Australian Capital Territory (ACT). It considers recent developments in the ACT, including the proposed development of a sentencing database and recent sentencing policy initiatives. The availability of public sentencing data and the role of sentencing councils in promoting public awareness and understanding of sentencing around Australia are also considered.

August 6, 2014 | Permalink | Comments (0)

Tuesday, August 5, 2014

"Visit the Wrong Website, and the FBI Could End Up in Your Computer"

From Wired:

Security experts call it a “drive-by download”: a hacker infiltrates a high-traffic website and then subverts it to deliver malware to every single visitor. It’s one of the most powerful tools in the black hat arsenal, capable of delivering thousands of fresh victims into a hackers’ clutches within minutes.

Now the technique is being adopted by a different kind of a hacker—the kind with a badge. For the last two years, the FBI has been quietly experimenting with drive-by hacks as a solution to one of law enforcement’s knottiest Internet problems: how to identify and prosecute users of criminal websites hiding behind the powerful Tor anonymity system.

August 5, 2014 | Permalink | Comments (0)

Carpenter & Stutsman on Corporate Liability Under the FCPA

William G Carpenter and Thomas Stutsman (Briol & Associates, PLLC and Department of Sociology, University of Wisconsin-Madison) have posted Corporate Liability Under the FCPA: Identifying Defense Opportunities (BENCH & BAR OF MINNESOTA, July 2014, at 24-28) on SSRN. Here is the abstract:

This article analyzes the Foreign Corrupt Practices Act (FCPA) enforcement action against Archer Daniels Midland Company to illustrate defense opportunities in FCPA cases.

August 5, 2014 | Permalink | Comments (0)

Harmon on Data on Policing

Harmon rachelRachel Harmon (University of Virginia School of Law) has posted Why Do We (Still) Lack Data on Policing? (Marquette Law Review, Vol. 96, No. 4, 2014) on SSRN. Here is the abstract:

The Wickersham Commission report on The Third Degree, found in the Commission’s famous Report on Lawlessness in Law Enforcement ended with the argument that the “real remedy” for police misconduct “lies in the will of the community,” which in turn depends on evidence about the nature and extent of police abuse. In this brief essay, I argue that the report’s call for information about policing has gone largely unanswered. Eighty years later, we still lack enough data about what the police do to shape their conduct effectively. Public policy and legal decisions about policing depend heavily on empirical judgments, but police chiefs and local government officials do not generate sufficient data about the police absent external regulation. Unfortunately, the Bureau of Justice Statistics and the Federal Bureau of Investigation, the primary federal agencies charged with collecting information on policing, have focused on serving the law enforcement community rather than facilitating governance of the police. The consequence is that we do not have the information we need to secure effective and rights-protecting policing.

August 5, 2014 | Permalink | Comments (0)

Monday, August 4, 2014

"Journalists criticize Mexican law limiting crime reporting"

From Jurist:

Journalists on Friday criticized the passage of a new law which restricts crime reporting within the state of Sinaloa [official website, in Spanish], located in northwestern Mexico. The legislation prohibits journalists from documenting a crime scene using audio or video [BBC report], essentially requiring journalists to rely on information approved by the Prosecutor's office within the region. Journalists specifically take issue with the limitations the law imposes on their ability to address and report the large issues with drug cartels [LA Timesreport] in the Sinaloa region. The law was recently signed by Sinaloa Governor Mario Lopez Valdez [official website] for the purpose of preserving crime scenes for Mexican authorities. The law is scheduled to take effect in October of 2014.

August 4, 2014 | Permalink | Comments (0)

Sun on Preexecution Delays

Angela April Sun has posted 'Killing Time' in the Valley of the Shadow of Death: Why Systematic Preexecution Delays on Death Row Are Cruel and Unusual (113 Columbia Law Review 1585 (2013)) on SSRN. Here is the abstract:

In the nearly four decades since the U.S. Supreme Court reinstated the death penalty in 1976, the average time between sentencing and execution in the United States has steadily increased to 16.5 years as of the end of 2011. In states like California, the total lapsed time from sentencing to execution exceeded two decades as of 2008. In response to these lengthening delays, scores of death row inmates have been raising Lackey claims over the last few decades — claims that inordinate preexecution delays on death row constitute cruel and unusual punishment under the Eighth Amendment. These claims have universally failed in the lower courts, even though two Supreme Court Justices have staunchly supported these claims and repeatedly noted that these claims have merit.

This Note examines the two existing formulations of the Lackey claim and argues that the reason that Lackey claims have been unsuccessful is that their focus on individual inmates’ delays has been misplaced.

Continue reading

August 4, 2014 | Permalink | Comments (0)

O'Flaherty & Sethi on Urban Crime

Brendan O'Flaherty and Rajiv Sethi (Columbia University, Graduate School of Arts and Sciences, Department of Economics and Columbia University, Barnard College - Department of Economics) has posted Urban Crime on SSRN. Here is the abstract:

We survey the literature on index crime, paying particular attention to spatial issues. We note the contrasting descriptive traditions of Lombroso (characteristics matter) and Beccaria (incentives matter); and the contrasting policy traditions of incapacitation (predict who will offend and keep them from doing it) and deterrence (uncover who offended and punish them). The economics of crime has several points of contact with the economics of space, since the commission of an index crime requires proximity between offenders and victims (or their property). We explore these linkages, as well as a range of other issues: the effects of certainty and severity of punishment on crime, the role of stereotypes in interactions between offenders, victims and law enforcement officers, and racial disparities in victimization, offending and incarceration. The economics of crime has made tremendous progress, but enormous variation across both time and space remains poorly understood, and many non-traditional explanations often neglected by economists need to be explored more systematically.

August 4, 2014 | Permalink | Comments (0)

Sunday, August 3, 2014

"California Asks: Should Doctors Face Drug Tests?"

FourthAmendment.com links to this piece in The New York Times. In part:

California would become the first state to require doctors to submit to random drug and alcohol tests under a measure to appear on the ballot this November. 

' ' '

[T]he measure threatens to put the medical profession in the difficult position of having to argue against the kind of scrutiny that an increasing number of workers — particularly in jobs affecting the public well-being — routinely undergo. Backers of Proposition 46 have begun putting out a steady stream of news releases about cases involving doctors with a history of drug and alcohol abuse. “It’s crucial: I can’t believe we haven’t done this already,” said Arthur L. Caplan, a medical ethicist at New York University. “We can argue about how often that is, and what to do if you are positive. But the idea that we wouldn’t be screening our surgeon, our anesthesiologist or our oncologist when we are going to screen our bus drivers and our airline pilots strikes me as ethically indefensible.”

August 3, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 335 Katz Has Only One Step: The Irrelevance of Subjective Expectations 
Orin S. Kerr 
George Washington University - Law School 
Date posted to database: 13 Jun 2014 
2 331 The Failure of Mitigation? 
Robert J. SmithSophie Culland Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 
3 250 Sales Suppression as a Service (SSaaS) & the Apple Store Solution 
Richard Thompson Ainsworth 
Boston University - School of Law 
Date posted to database: 6 Jun 2014 
4 219 The Consequences of Error in Criminal Justice 
Daniel Epps 
Harvard Law School 
Date posted to database: 9 Jul 2014 [new to top ten]
5 116 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 [8th last week]
6 102 State Law Reporting and Disclosure Mandates Under ERISA 
Albert Feuer 
Law Offices of Albert Feuer 
Date posted to database: 16 Jul 2014 [new to top ten]
7 94 Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis 
Jonathan Rapping 
Atlanta's John Marshall Law School 
Date posted to database: 22 May 2014 [6th last week]
8 84 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 [new to top ten]
9 81 Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard 
Ray McKoski 
The John Marshall Law School
Date posted to database: 30 May 2014 [10th last week]
10 79 Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi 
Nancy J. King 
Vanderbilt University - Law School 
Date posted to database: 28 Jun 2014 [new to top ten]

August 3, 2014 | Permalink | Comments (0)