Monday, October 6, 2014
|1||440||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
|2||340||A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion
Mark William Osler and Mark W. Bennett
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa)
Date posted to database: 1 Sep 2014
|3||325||Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team
Stanford Law School - Constitutional Law Center
Date posted to database: 27 Aug 2014 [4th last week]
|4||268||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 [5th last week]
|5||218||Banks, Marijuana, and Federalism
Julie Andersen Hill
University of Alabama - School of Law
Date posted to database: 30 Aug 2014 [7th last week]
|6||210||Intellectual Property Infringement as Vandalism
Irina D. Manta and Robert E. Wagner
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law
Date posted to database: 24 Aug 2014
|7||181||Waking the Furman Giant
Sam Kamin and Justin F. Marceau
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 5 Aug 2014 [8th last week]
|8||177||It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts
Patricia Salkin and Bailey Ince
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center
Date posted to database: 5 Sep 2014 [new to top ten]
|9||169||Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash
University of Chicago Law School
Date posted to database: 23 Aug 2014
|10||164||Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission
Owen D. Jones, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman,Morris B. Hoffman, Read Montague, Stephen Morse,Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott,Laurence Steinberg, Kim A. Taylor-Thompson, Anthony D. Wagner and Gideon Yaffe
Vanderbilt University - Law School & Dept. of Biological Sciences, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law, Stanford University - Psychology and Yale Law School
Date posted to database: 31 Aug 2014 [new to top ten]
Sunday, October 5, 2014
States and counties are given wide berth to regulate and protect public health under their general "police powers." Although the spread of Ebola is fairly new, local governments since the times of America's founders have had to deal with outbreaks of deadly diseases and how to legally contain them. Sometimes this mandated draining swamps or cesspools (thought to be the genesis of diseases), but it also included the power to quarantine infected individuals.
. . .
Though these quarantine measures are not derived from criminal authorities, Duncan's family may face criminal charges if they try to break quarantine. The Texas Department of State Health Services stated on Thursday that if a person does not follow a "control measure," including quarantine, then that person can potentially face criminal charges.
Bullets found in an apartment rented by ex-New England Patriots player Aaron Hernandez and a magazine found in his Hummer were thrown out as evidence in his murder case Thursday by a judge who said state police didn't demonstrate probable cause for the searches.
Judge E. Susan Garsh said there were "absolutely no facts'' linking Hernandez "in any way at all to the crime under investigation'' in an affidavit supporting the warrant application to search his Franklin apartment. That warrant was for a cellphone belonging to co-defendant Carlos Ortiz, who was with Hernandez when Odin Lloyd was killed.
Saturday, October 4, 2014
Friday, October 3, 2014
Michelle S. Phelps (University of Minnesota - Twin Cities - Dept of Sociology) has posted The Curious Disappearance of Sociological Research on Probation Supervision (Criminal Justice and Law Enforcement Annual: Global Perspectives, no. 2 (April 2015 Forthcoming)) on SSRN. Here is the abstract:
At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population. This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.
Pamela Metzger (Tulane University - Law School) and Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) have posted Defending Data (88 Southern California Law Review (2015)) on SSRN. Here is the abstract:
Defending Data proposes a data-driven, systems-based approach to improving public defense in America.
Public defenders represent millions of defendants every year. Yet, public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense.
Thursday, October 2, 2014
Wayne A. Logan (Florida State University - College of Law) has posted After the Cheering Stopped: Decriminalization and Legalism's Limits (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.
Wednesday, October 1, 2014
"Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?"
Adam Lamparello (Indiana Tech - Law School) has posted Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard on SSRN. Here is the abstract:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Although rarely remarked upon in Fourth Amendment jurisprudence, traditional notions of sex and gender matter in a host of areas, from stop and frisks on the streets, to strip searches in schools and prisons, to the pat downs and body scans that have become the new normal at airports. The first goal of this Article is to uncover and draw attention to this aspect of the Fourth Amendment. The second concededly more ambitious goal is to interrogate this reliance on tradition. A Fourth Amendment preference for same-gender searches may comport with notions of modesty and societal norms. But at what cost to the Fourth Amendment? And at what cost to true equality?
Tuesday, September 30, 2014
Shachar Eldar and Elkana Laist (Ono Academic College Faculty of Law and Government of the State of Israel) have posted The Misguided Concept of Partial Justification (Legal Theory, Vol. 20, 2014) on SSRN. Here is the abstract:
Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find however that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law, and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meet this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness, indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defence.
Monday, September 29, 2014
Sara Mayeux has posted Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel (Iowa Law Review, Vol. 99, p. 2161, 2014) on SSRN. Here is the abstract:
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.
Jury trials are rare. Almost all criminal cases are resolved by guilty plea, and almost all guilty pleas are secured by prosecutorial offers of leniency. Our system of criminal procedure was developed around the norm of trials, and the shift to resolution-by-plea represents a massive change to the structure of the system.
The dominance of plea bargaining can best be explained by reference to a constitutionalized criminal procedure that renders formal adjudication too costly to provide in most cases. Plea bargaining dramatically enhances the efficiency of our system, serving as a safety valve against costly trials. The transformation of an adjudicatory system of criminal justice to a confessional one, however, generates severe costs for the legal system as a whole.
This article proposes trial bargaining as a new safety valve to counteract the negative consequences plea bargaining. Through the mechanism of waiver – the very tool that makes plea bargaining possible – trial bargaining allows the defendant to waive limited trial rights in exchange for limited leniency. As such, it promises to reinvigorate the jury trial, mitigate the costs of an excessive reliance on plea bargains, and allow a more vibrant and experimental approach to criminal justice than has been realized under our constitutionalized system.
From The New York Times:
But the focus on misconduct by companies never resulted in any significant prosecutions of individual executives. The Justice Department passed on pursuing charges against officials at the American International Group, Lehman Brothers and Countrywide Financial, which were at the heart of the financial crisis. DealBook reported that the government now may pursue civil fraud chargesagainst Countrywide’s co-founder, Angelo R. Mozilo, and other executives at the mortgage lender, but that case would come more than six years after the financial crisis. That would hardly seem to redress the criticism about a lack of any signature prosecutions during Mr. Holder’s tenure.
The lack of individual prosecutions stands in stark contrast to Mr. Holder’s more aggressive approach to holding companies responsible for misconduct by seeking larger fines along with guilty pleas. That is especially true when those convictions do not have the same effect as a conviction of an individual. Mr. Holder seemed to raise the white flag on charging individuals for corporate misconduct in one of his last speeches before announcing he would step down. He lamented that “the buck still stops nowhere” when a corporation violates the law because “responsibility remains so diffuse, and top executives so insulated, that any misconduct could again be considered more a symptom of the institution’s culture than a result of the willful actions of any single individual.”
The U.S. Justice Department asked the Ferguson, Missouri, Police Department on Friday to order its officers not to wear bracelets in support of the white policeman who shot to death an unarmed black teenager last month, sparking protests.
. . .
In a separate letter sent to Jackson earlier this week, the Justice Department said its investigators had observed Ferguson police officers not wearing, or obscuring, their name tags on their uniforms, a violation of the police department's rules.
"The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity," the letter said.
Michele Goodwin (University of California, Irvine School of Law) has posted Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront (California Law Review, Vol. 102, No. 4, August 2014) on SSRN. Here is the abstract:
This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states’ chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that fetal protection laws unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.
From the Miami Herald, this AP report:
To catch a Philadelphia municipal judge they suspected of corruption, FBI agents invented a defendant — complete with a staged arrest and court appearances.
Court documents from Judge Joseph Waters Jr.'s guilty plea Wednesday to federal mail and wire fraud charges include details of the bogus arrest of a man named David Khoury for illegally carrying an unloaded Glock .40-caliber pistol during a 2012 traffic stop, The Philadelphia Inquirer (http://bit.ly/1votQwe) reported.