CrimProf Blog

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

Tuesday, April 4, 2017

Almendares & Landa on Joint Intention and Accomplice Liability

Nicholas Almendares and Dimitri Landa (Tulane University - Law School and New York University (NYU) - Wilf Family Department of Politics) has posted Joint Intention and Accomplice Liability on SSRN. Here is the abstract:

When can one be held criminally liable for the criminal acts of another? This central question of accomplice liability law has spawned conflicting precedents and a confused, inconsistent doctrine. One prominent approach, at the core of the Joint Criminal Enterprise doctrine used by international courts as well as of the law used in a number of high-profile domestic cases, is to base joint criminal liability on foreseeability. However, the foreseeability standard entails abandoning mens rea and individual intentions as necessary elements of a crime, and so departs from some of the law’s core commitments. The other main approach, based on an influential opinion by Learned Hand, ties joint criminal liability to intention. In so doing, it avoids the problems of the foreseeability doctrine, but it is too ambiguous to be applied consistently.

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April 4, 2017 | Permalink | Comments (0)

Marcus on Conspiracy

Marcus paulPaul Marcus (William & Mary Law School) has posted The Crime of Conspiracy Thrives in Decisions of the United States Supreme Court (Kansas Law Review, Vol. 64, 2015) on SSRN. Here is the abstract:

For most of the past century, the crime of conspiracy has generated a good deal of controversy before the Supreme Court. Whether with issues concerning broadening a hearsay exception based on a purported conspiracy to conceal as part of an initial agreement or with the limits of proof as to individual membership in a conspiracy, the Justices consistently looked with care at the reach of the crime.

April 4, 2017 | Permalink | Comments (0)

Buller on Rape Myths

Tyler J. Buller (Iowa Department of Justice) has posted State v. Smith Perpetuates Rape Myths and Should Be Formally Disavowed (102 Iowa L. Rev. Online 185 (2017)) on SSRN. Here is the abstract:

In 1993, the Iowa Court of Appeals decided State v. Smith and reversed a jury’s verdict finding a man guilty of sexually abusing his stepdaughters. In a divided and published decision, the Court of Appeals substituted its judgment for the trial jury because it did not believe aspects of the girls’ trial testimony. The foundation of Smith is based on what we today call rape myths or expressions of rape culture. The Smith opinion cannot be reconciled with a modern understanding of child-sex-abuse dynamics and this Essay argues Smith should be explicitly overruled.

April 4, 2017 | Permalink | Comments (0)

Monday, April 3, 2017

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

  • Ayestas v. Davis: Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.

April 3, 2017 | Permalink | Comments (0)

Opinion permitting consideration of mandatory minimum in setting offense for predicate offense

Chief Justice Roberts delivered the opinion of the Court in Dean v. United States.

April 3, 2017 | Permalink | Comments (0)

Stevenson & Mayson on Bail Reform

Megan Stevenson and Sandra G. Mayson (University of Pennsylvania Law School and University of Pennsylvania Law School) have posted Bail Reform: New Directions for Pretrial Detention and Release (In Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN. Here is the abstract:

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates. Practical and low-cost interventions, such as court reminder systems, are underutilized. To promote lasting reform, this chapter identifies pretrial strategies that are both within the state’s authority and supported by empirical research. These interventions should be designed with input from stakeholders, and carefully evaluated to ensure that the desired improvements are achieved.

April 3, 2017 | Permalink | Comments (0)

Cole on Scandal, Fingerprints, and Reform of Forensic Science

Simon A. Cole (University of California, Irvine - Department of Criminology, Law and Society) has posted Scandal, Fraud, and the Reform of Forensic Science: The Case of Fingerprint Analysis (West Virginia Law Review, Vol. 119, No. 2, 2016) on SSRN. Here is the abstract:

The purpose of this Article is to explore the role of scandal in bringing about the reform of forensic science. It uses the forensic discipline of latent print (fingerprint) analysis as a case study. It further confines itself to two countries: the United States and the United Kingdom. Each country hosted a major scandal with regard to fingerprint analysis within the past two decades. These scandals, commonly known by the names of the victims of misidentification are the “Mayfield case” in the U.S. and the “McKie case” in the United Kingdom. This Article seeks to assess the impact of these two scandals on the reforms to fingerprint analysis that have occurred since the McKie case in 1997. It does so using the historian’s technique of posing a counterfactual: what would fingerprint analysis look like today had these two scandals not occurred, or, more realistically, had they occurred, but not been exposed? This Article finds that these two scandals played important roles in bringing about the reforms in fingerprint analysis that have occurred in the past two decades. This Article concludes with some reflections on the implications of this finding: that the discipline of forensic science and the institutions that are its clients (courts, police, attorneys, government, the public, etc.) are so heavily dependent on scandal as an engine for bringing about what few dispute were necessary and positive reforms. It suggests that we need to seek more stable and less volatile means of bringing about necessary and positive reforms.

April 3, 2017 | Permalink | Comments (0)

Sunday, April 2, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 587 Law, Virtual Reality, and Augmented Reality
Mark A. Lemley and Eugene Volokh
Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 17 Mar 2017 
2 472 How Should Justice Policy Treat Young Offenders?
BJ Casey, Richard J. Bonnie, Andre Davis,David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Anthony D. Wagner
Yale University - Department of Psychology, University of Virginia - School of Law, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology
Date posted to database: 28 Feb 2017 
3 121 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [new to top ten]
4 115 Why Prison?: An Economic Critique
Peter N. Salib
University of Chicago
Date posted to database: 7 Mar 2017 [3rd last week]
5 109 Neuroethics: Neurolaw
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [4th last week]
6 102 Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs
Sahar F. Aziz
Texas A&M University School of Law
Date posted to database: 9 Feb 2017 
7 97 McDonnell and the Criminalization of Politics
George D. Brown
Boston College Law School
Date posted to database: 2 Feb 2017 
8 86 Incredible Women: Sexual Violence and the Credibility Discount
Deborah Tuerkheimer
Northwestern University - Pritzker School of Law
Date posted to database: 21 Feb 2017 
9 76 Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 7 Feb 2017 
10 69 The Legal Consequences of Noncompliance with Federal Tax Laws
Allen D. Madison
University of South Dakota Law School
Date posted to database: 10 Feb 2017 

April 2, 2017 | Permalink | Comments (0)

Saturday, April 1, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 4,000 Encryption Workarounds
Orin S. Kerr and Bruce Schneier
The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society
Date posted to database: 22 Mar 2017 [new to top ten]
2 505 Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Leah M. Litman
University of California, Irvine School of Law
Date posted to database: 24 Jan 2017 [1st last week]
3 260 The Progressive Prosecutor's Handbook
David Alan Sklansky
Stanford University
Date posted to database: 15 Feb 2017 [2nd last week]
4 228 The Undue Influence of Surveillance Technology Companies on Policing
Elizabeth E. Joh
University of California, Davis - School of Law
Date posted to database: 28 Feb 2017 [3rd last week]
5 214 Surveillance Intermediaries
Alan Z. Rozenshtein
Georgetown University Law Center
Date posted to database: 20 Mar 2017 [new to top ten]
6 169 The Battle over the Burden of Proof: A Report from the Trenches
Michael D. Cicchini
Independent
Date posted to database: 14 Feb 2017 [4th last week]
7 157 Reassessing Prosecutorial Power Through the Lens of Mass Incarceration
Jeffrey Bellin
William & Mary Law School
Date posted to database: 9 Mar 2017 [5th last week]
8 132 Due Process Abroad
Nathan S. Chapman
University of Georgia School of Law
Date posted to database: 21 Feb 2017 [6th last week]
9 123 The American Death Penalty Decline
Brandon L. Garrett, Alexander Jakubow andAnkur Desai
University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law
Date posted to database: 4 Feb 2017 [8th last week]
10 121 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [new to top ten]

April 1, 2017 | Permalink | Comments (0)

Friday, March 31, 2017

Kerr & Schneier on Encryption Workarounds

Orin S. Kerr and Bruce Schneier (The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society) have posted Encryption Workarounds on SSRN. Here is the abstract:

The widespread use of encryption has triggered a new step in many criminal investigations: the encryption workaround. We define an encryption workaround as any lawful government effort to reveal an unencrypted version of a target’s data that has been concealed by encryption. This essay provides an overview of encryption workarounds. It begins with a taxonomy of the different ways investigators might try to bypass encryption schemes. We classify six kinds of workarounds: find the key, guess the key, compel the key, exploit a flaw in the encryption software, access plaintext while the device is in use, and locate another plaintext copy. For each approach, we consider the practical, technological, and legal hurdles raised by its use.

The remainder of the essay develops lessons about encryption workarounds and the broader public debate about encryption in criminal investigations.

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March 31, 2017 | Permalink | Comments (0)

Leo on Suspect Confessions

Leo richardRichard A. Leo (University of San Francisco - School of Law) has posted Police Interrogation and Suspect Confessions: Social Science, Law and Public Policy (in Erik Luna, ed. Academy for Justice: A Report on Scholarship and Criminal Justice Reform (2017, Forthcoming)) on SSRN. Here is the abstract:

In this chapter, I review and analyze the most important findings from the extensive empirical social science research literature on police interrogation and confessions. I then review existing law and policy on interrogation and confessions, and then offer empirically based policy and legal recommendations. I will argue that the most important legal and policy reforms for achieving both the elicitation (by police) and admission into evidence (by trial courts) of voluntary and reliable confession evidence are: mandatory full electronic recording of all police interviews and interrogations; improved police training and practice on pre-interrogation investigative procedures; a shift from guilt-presumptive accusatory interrogation techniques that prioritizes eliciting confessions above all else to more professional investigative interviewing approaches that prioritize obtaining accurate information above all else; and pre-trial reliability hearings to prevent false and unreliable confession evidence from being admitted into evidence at trial and leading to wrongful convictions.

March 31, 2017 | Permalink | Comments (0)

Tanovich on Racial Profiling

David M. Tanovich (University of Windsor - Faculty of Law) has posted Applying The Racial Profiling Correspondence Test (66(1) Criminal Law Quarterly, 2018, Forthcoming) on SSRN. Here is the abstract:

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.”

Brown established a correspondence test for proving racial profiling. This paper aims to set out, in some detail, how and when the correspondence test can be applied.

Part I sets out the test from Brown. Part II identifies the different manifestations of racial profiling. Part III examines the relevant indicators that can be used to meet the test. These indicators include context, pretext and lessons learned. Part III also summarizes the recent carding/street check data which reveals the widespread nature of the disproportionate policing of Black and other racialized individuals in a number of cities across Canada.

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March 31, 2017 | Permalink | Comments (0)

Bellin on The Silence Penalty

Bellin jeffreyJeffrey Bellin (William & Mary Law School) has posted The Silence Penalty (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.

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March 31, 2017 | Permalink | Comments (0)

Thursday, March 30, 2017

Scharf on Drones and Privacy

Scharf rebeccaRebecca L. Scharf (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy on SSRN. Here is the abstract:

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such as the use of photography, audio recording, heat sensors, or GPS violated an individual’s Fourth Amendment right to privacy. But now, one of the most complex and innovative technological advances in recent years, the unmanned aerial vehicle, or drone, has created an especially difficult issue for courts. Because a single drone can be fitted with multiple technologies, courts need to employ a multidimensional analysis to determine whether an individual’s Fourth Amendment rights have been violated.

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March 30, 2017 | Permalink | Comments (0)

Griffin on Plea Bargaining Regulation and Indigent Defense

Griffin lisa kernLisa Kern Griffin (Duke University School of Law) has posted State Incentives, Plea Bargaining Regulation, and the Failed Market for Indigent Defense (Law and Contemporary Problems, Vol. 80, 2017) on SSRN. Here is the abstract:

This essay considers the intersection of two “markets” in the criminal justice system: plea bargaining and the provision of indigent defense. Plea bargaining has long been justified by free-market conceptions of private ordering and is subject to limited judicial oversight and regulation. The vast majority of defendants engaged in plea bargaining—several million each year—also rely on a publicly funded system for the provision of counsel. Staggering caseloads and minimal standards have produced an acute crisis in that system. Yet in three recent decisions, the Supreme Court has incrementally expanded the requirement of adequate assistance of counsel for defendants engaged in plea bargaining. The failure to advise a defendant entering a guilty plea of the collateral immigration consequences of conviction, exceedingly poor advice about rejecting a plea offer, and counsel’s failure to even convey the terms of a plea agreement all constitute breaches of a defendant’s Sixth Amendment right to representation. Although these decisions do not portend significant constitutional regulation of prosecutorial tactics or changes to the terms of plea agreements themselves, they have unexplored potential to affect the system of public defense.

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March 30, 2017 | Permalink | Comments (0)

Wexler & Jones on Probation and Reentry Courts

David B. Wexler and Michael D. Jones (University of Puerto Rico - School of Law and Arizona Summit Law School) have posted Creating a Reentry Court by Wagging the ‘Probation Tail’ (Therapeutic Jurisprudence in the Mainstream, 2017 (Forthcoming)) on SSRN. Here is the abstract:

This short essay explains how a device already used in Arizona, and known as a "probation tail", can be used by judges in appropriate cases to in essence create a reentry court. The original purpose of the probation tail device (an incarcerative sentence followed by a consecutive sentence of probation) was to ensure community supervision by well-trained and well-resourced probation officers, rather than by overburdened and underfunded parole officers. Our proposal is that efforts would be undertaken to allow for a seamless transition from incarceration to probation; in appropriate cases, the tail would include periodic status hearings, and eventual termination (or somewhat early termination) would include a brief "ceremony" with the presence of a handful of family and friends. All of these measures, of course, should facilitate a successful reentry to the community.

March 30, 2017 | Permalink | Comments (0)

Simmons on Fourth Amendment Use Restrictions

Simmons ricRic Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted The Mirage of Use Restrictions (North Carolina Law Review, 2017 Forthcoming) on SSRN. Here is the abstract:

The Fourth Amendment strikes a balance between Americans’ privacy interests and the government’s need to investigate crime. It does so almost exclusively by placing restrictions on how the government collects information: if the government surveillance constitutes a “search,” the government must meet certain legal standards before it can engage in that surveillance. Over the past few decades, technological advances have increased exponentially the government’s ability to collect information, and many of these new surveillance methods do not fit into the traditional definitions of a Fourth Amendment search. In response, courts and commentators have searched for new doctrines to define and limit the government’s surveillance power. One of the more popular proposals that has been advanced is to force the government to adopt “use restrictions” — limitations on what the government can do with information that it collects or that is already in its possession. This new type of restriction represents a significant shift from the current paradigm of regulating government surveillance: a shift away from regulating how information is collected and towards regulating how the information is used.

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March 30, 2017 | Permalink | Comments (0)

Wednesday, March 29, 2017

Rozenshtein on Surveillance Intermediaries

Alan Z. Rozenshtein has posted Surveillance Intermediaries (70 Stanford Law Review (2018 Forthcoming)) on SSRN. Here is the abstract:

Apple’s 2016 fight against a court order commanding it to help the FBI unlock the iPhone of one of the San Bernardino terrorists exemplifies how central the question of regulating government surveillance has become in American politics and law. But scholarly attempts to answer this question have suffered from a serious omission: scholars have ignored how government surveillance is checked by “surveillance intermediaries,” the companies like Apple, Google, and Facebook that dominate digital communications and data storage, and on whose cooperation government surveillance relies. This Article fills this gap in the scholarly literature, providing the first comprehensive analysis of how surveillance intermediaries constrain the surveillance executive. In so doing, it enhances our conceptual understanding of, and thus our ability to improve, the institutional design of government surveillance.

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March 29, 2017 | Permalink | Comments (0)

Reid on the Fourth Amendment in an Age of Supercomputers

Reid melanieMelanie Reid (Lincoln Memorial University - Duncan School of Law) has posted Rethinking the Fourth Amendment in the Age of Supercomputers, Artificial Intelligence, and Robots (West Virginia Law Review, Vol. 119, No. 101, 2017) on SSRN. Here is the abstract:

Law enforcement currently uses cognitive computers to conduct predictive and content analytics and manage information contained in large police data files. These big data analytics and insight capabilities are more effective than using traditional investigative tools and save law enforcement time and a significant amount of financial and personnel resources. It is not farfetched to think law enforcement’s use of cognitive computing will extend to using thinking, real-time robots in the field in the not-so-distant future. IBM’s Watson currently uses its artificial intelligence to suggest medical diagnoses and treatment in the healthcare industry and assists the finance industry in improving investment decisions. IBM and similar companies already offer predictive analytics and cognitive computing programs to law enforcement for real-time intelligence and investigative purposes. This article will explore the consequences of predictive and content analytics and the future of cognitive computing, such as utilizing “robots” such as an imaginary “Officer Joe Roboto” in the law enforcement context. Would our interactions with Officer Joe Roboto trigger the same Fourth Amendment concerns and protections as those when dealing with a flesh-and-blood police officer? Are we more afraid of a “robotic” Watson, its capabilities, and lack of feeling and biases, compared to a human law enforcement officer? Assuming someday in the future we might be able to solve the physical limitations of a robot, would a “robotic” officer be preferable to a human one? What sort of limitations would we place on such technology? This article attempts to explore the ramifications of using such computers/robots in the future. Autonomous robots with artificial intelligence and the widespread use of predictive analytics are the future tools of law enforcement in a digital age, and we must come up with solutions as to how to handle the appropriate use of these tools.

March 29, 2017 | Permalink | Comments (0)

Fuster on AEDPA and Summary Dispositions

Patrick J. Fuster (University of Chicago, Law School, Students) has posted Taming Cerberus: The Beast at AEDPA's Gates (84 University of Chicago Law Review, 2017, Forthcoming) on SSRN. Here is the abstract:

The Antiterrorism and Effective Death Penalty Act of 1996 erects barriers (or “gates”) to relief on federal habeas corpus, reinforcing and supplementing judge-made ones. Though broad in its reach, AEDPA is frequently silent to the particulars. To fill gaps in the statute and case law, federal habeas courts have fallen back on overly simplistic abstractions of finality, comity, and federalism, following the lead of the Supreme Court in its frequent invocation of the triad. By ignoring the particular application within the concrete issue, judges err in divining the true magnitude and limits on these purposes. Instead, they conjure Cerberus, an unprincipled beast that denies relief whenever the gates of AEDPA and the case law are not dispositive. This Comment develops a more nuanced framework to gauge the interaction of the three purposes within the context of a current circuit split on the meaning of summary dispositions.

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March 29, 2017 | Permalink | Comments (0)