Wednesday, January 14, 2015
Opinion permitting prevailing habeas petitioner to argue theories rejected on appeal without filing cross-appeal
Orna Alyagon Darr (The Carmel Academic Center - Faculty of Law) has posted Relocated Doctrine: The Travel of the English Doctrine of Corroboration in Sex Offense Cases to Mandate Palestine (Yale Journal of Law and the Humanities, Vol. 26, No. 2, 2014) on SSRN. Here is the abstract:
The spread of the British Empire was accompanied by the relocation of legal doctrines, which took on new meanings and uses. This article follows the relocation to Mandate Palestine of the common-law doctrine of corroboration of victim testimony in sex offense cases. In England, corroboration was a cautionary rule that expressed mistrust of female complainants. In jury-less Palestine, the rule also expressed deep distrust toward non-English complainants, especially children. While the British rulers of Palestine prided themselves on imposing sexual regulation tailored to protecting women and children, an analysis of the way corroboration was applied in that setting reveals a rigidly imposed and hard-to-meet evidentiary standard. British colonial judges maintained that demanding corroboration in sex offense cases was an implementation of English law. However, the rule was not simply a ‘transplant’ that reproduced the original but, rather, acquired its meaning within the specific social context and in the subjectivities of its users.
Jeffrey K. Gurney (University of South Carolina - School of Law) has posted Driving Into the Unknown: Examining the Crossroads of Criminal Law and Autonomous Vehicles (5 Wake Forest J. L. & Pol'y, 2015, Forthcoming) on SSRN. Here is the abstract:
This Article examines the application of criminal law to autonomous vehicles. The Article applies the general purposes of punishment to criminal laws which intersect with autonomous vehicles. These laws include: (1) rules of the road; (2) driving under the influence; (3) reckless driving; (4) vehicular manslaughter; (5) location specific crimes; and (6) physical and virtual interference with a vehicle. This Article provides an overview of how a violation of these criminal laws will be treated under current criminal law, and then it argues that current law should be amended because the current application of criminal and traffic laws to autonomous vehicles will make programming the vehicles challenging and enforcing the laws difficult.
Tuesday, January 13, 2015
Marc Edward Rosenthal has posted Where is the Justice? The Sexual Assault Crisis Plaguing the Military and a Lack of Meaningful Justice (4 U. MIAMI NAT'L SEC. & ARMED CONFLICT L. REV. 295 (2014)) on SSRN. Here is the abstract:
Sexual assault is a major problem in every branch of the American Armed Forces. The current military justice system is flawed in such a way as to deny victims of sexual assault in the military meaningful and competent justice. Victims of sexual assault in the military do not receive the same due process that their civilian counterparts receive. The bottom line is that our service-members deserve more than the current military justice system provides because service-members leave their loved ones and homes to fight - sometimes never to return - in order to protect our homeland and promote American justice and democracy abroad.
Samuel William Bettwy has posted A Survey of Comparative Criminal Procedure through Foreign Films (Pisa: Opinio Juris in Comparatione, 2014 (Special Issue)) on SSRN. Here is the abstract:
Textbook for course in Comparative Criminal Procedure through Film. Constructs of comparative legal analysis are described and then applied to examine the adjudicative process through foreign films, beginning with police contact with a crime suspect and ending either with a judge or jury’s acquittal of an accused or with execution of sentence. The analytical constructs include the inquisitorial-adversarial dichotomy, role-specific constructs, and the Civil Law-Common Law dichotomy. In addition, differences in criminal procedure are examined through the Socialist, Islamic, and indigenous legal traditions. Role-specific constructs measure the degree to which a suspect is expected to cooperate, the degree of independence and neutrality of the prosecutor, and the degree of lay participation (jurors) in adjudication and sentencing. The author concludes that a survey of foreign films confirms that suspects and accused enjoy greater protection of the presumption of innocence in Common Law, adversarial justice systems, and that there are several aspects of U.S. criminal procedure that could be changed to further safeguard the presumption of innocence.
Monday, January 12, 2015
Adam Lamparello (Indiana Tech - Law School) has posted City of Los Angeles v. Patel: The Upcoming Supreme Court Case No One is Talking About on SSRN. Here is the abstract:
Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question — and the proverbial elephant in the room — is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry is the tip of the iceberg. The hotel guests’ privacy rights — just like the cell phone user’s and the internet subscriber’s — is where the rubber meets the constitutional road.
The issue lurking in the background of City of Los Angeles v. Patel — and in the back of most citizens’ minds — transcends hotel owners, highly regulated industries, and Holiday Inns. It is about whether the third-party doctrine, which was created during the disco era when rotary telephones were in vogue, adequately protects privacy rights in the digital era. The answer to this question should be no.
Vanessa MacDonnell (University of Ottawa - Common Law Section) has posted The New Self-Defence Law: Progressive Development or Status Quo? ((2014) 92:2 Canadian Bar Review 301) on SSRN. Here is the abstract:
For more than three decades, feminist law reformers have argued that the law must better account for the different ways that men and women act in self-defence. In R v Lavallee, the Supreme Court agreed. Perhaps it should come as no surprise, then, that when the Conservative government introduced changes to the self-defence provisions in 2011 the amendments would reflect this evolution. In this paper I assess whether the law of self-defence is stronger now that feminist demands for change have been translated into law. In particular, I ask whether the new provision is likely to produce better results for groups whose self-defence claims have not always been dealt with satisfactorily.
Jonathan Jackson (London School of Economics & Political Science - Department of Methodology) has posted On the Dual Motivational Force of Legitimate Authority (Forthcoming, Jackson, J. (2015). ‘On the Dual Motivational Force of Legitimate Authority’, in Bornstein, B. H. and Tomkins, A. J. (eds.) Cooperation and Compliance with Authority: The Role of Institutional Trust. 62nd Nebraska Symposium on Motivation. New York: Springer) on SSRN. Here is the abstract:
In this chapter I consider two ways by which the legitimacy of legal authorities might motivate people to abide by the law. Following recent criminological research I define legitimacy along two different dimensions: the first is the public recognition of the rightful authority of an institution, and the second is a sense among citizens that the institution is just, moral and appropriate. Data from a randomized controlled trial of procedurally just policing provide further support for the idea that justice systems can secure compliance by (a) instilling in citizens a sense of deference and obligation, and (b) showing to citizens that they represent a requisite sense of moral appropriateness. While prior work has tended to focus on the idea that legitimacy shape compliance through felt obligation, the current analysis shows that compliance is predicted by both duty to obey and moral endorsement. Consistent with a good deal of existing evidence, the findings also indicate the importance of procedural justice and group identification in the production of institutional legitimacy. I conclude with the idea that legitimacy may be able to shape compliance through shape content-free obligation and shared moral appropriateness.
Susan Dimock (York University) has posted Contractarian Criminal Law Theory and Mala Prohibita Offences (R.A. Duff, Lindsay Farmer, S.E. Marshall, M. Renzo and V. Tadros, eds., Criminalization: The Political Morality of the Criminal Law (Oxford University Press): 151-181) on SSRN. Here is the abstract:
One seemingly perennial debate within criminal law theory concerns what, if anything, justifies the use of mala prohibita offences. While some of that debate may be attributed to disputes over the meaning of mala prohibita and how they should be contrasted with mala in se, and indeed whether there is a meaningful distinction to be drawn at all, most criminal law theorists continue to employ the distinction and share at least a core understanding of what they mean by the respective labels. I employ the most common and minimal description of the distinction in what follows: an offence is an instance of malum prohibitum when the conduct it proscribes is not wrongful prior to or independent of law, while a malum in se offence is an act that is wrongful prior to and independent of its legal prohibition. This way of drawing the distinction is compatible with contractarianism, whereas some other ways of drawing it are not. Most notably, some commentators think of mala in se offences as involving ‘acts that are wrong in themselves’ or as consisting of conduct that is intrinsically wrong. Such usage lends itself naturally to ‘a kind of moral realism’, as Alice Ristroph notes, and such realism is incompatible with the constructivist rational choice contractarianism I utilize in this paper. Malum in se conduct cannot be understood as wrong prior to the social contract, prior to or independently of the agreement to enter into mutually beneficial cooperation, but it can be understood as wrong prior to its legal prohibition, and it is that common understanding that forms the basis of the discussion to follow.
Saturday, January 10, 2015
Mona Lynch and Craig Haney (University of California, Irvine - Department of Criminology, Law and Society and University of California, Santa Cruz - Department of Psychology) have posted Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations (Law and Social Inquiry, 2014) on SSRN. Here is the abstract:
This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making. The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.
Friday, January 9, 2015
David H. Kaye , Frederick R. Bieber and Damir Primorac (The Pennsylvania State University Dickinson School of Law , Independent and Primorac & Partners) have posted DNA as Evidence in the Courtroom (Forensic DNA Applications: An Interdisciplinary Perspective 509-25 (Dragan Primorac & Moses Schanfield eds. 2014)) on SSRN. Here is the abstract:
This paper appears in Forensic DNA Applications: An Interdisciplinary Perspective, a textbook and reference work on forensic molecular biology prepared for the International Society of Applied Biological Sciences. Originally submitted in January 2012, the chapter outlines the legal principles that govern the admissibility of scientific evidence, briefly surveys the history of legal challenges to forensic DNA typing, and simply identifies some current legal issues in the use of the technology in trials.
Alex Rosenblat , Kate Wikelius , danah boyd , Seeta Peña Gangadharan and Corrine Yu (Data & Society , The Leadership Conference on Civil and Human Rights , Data & Society , New America Foundation - Open Technology Institute and The Leadership Conference on Civil and Human Rights) have posted Data & Civil Rights: Criminal Justice Primer (Data & Civil Rights Conference, October 2014) on SSRN. Here is the abstract:
There has been some discussion of how “big data” can be used to remedy inequalities in the criminal justice system; civil rights advocates recognize potential benefits but remained fundamentally concerned that data-oriented approaches are being designed and applied in ways that also disproportionately harms those who are already marginalized by criminal justice processes. Like any other powerful tool of governance, data mining can empower or disempower groups. The values that go into an algorithm, and the metrics it optimizes for, are baked into its design. Data could be used to identify discrimination in current practices, or to predict where certain combinations of data points are likely to lead to an erroneous conviction. When algorithms are designed to improve how law enforcement regimes are deployed, the question that data analytics raises is, which efficiencies are we optimizing for? Who are the stakeholders, and where do they stand to gain or lose? How do these applications intersect with core civil rights concerns? Where can we use big data techniques to improve the structural conditions criminal justice system that lead to disparate impacts on marginalized communities? How do we measure that impact, and the factors that lead to it?
Will Baude has this post at The Volokh Conspiracy. In part:
Today after its first conference of 2015, the Supreme Court ordered the parties in Johnson to brief and reargue the following question: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague.” . . .
Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right.
From The New York Times:
The Brooklyn district attorney’s office, which revisited Mr. Hamilton’s case through its Conviction Review Unit, said that medical and scientific evidence, like the path of the bullets and where the victim’s bleeding occurred, undercut the sole eyewitness’s testimony and that the eyewitness was not credible.
Mr. Hamilton, 49, who was paroled in 2011, was one of the first to notice that there were troubling similarities in convictions involving a former police detective, Louis Scarcella. Mr. Hamilton discovered that Mr. Scarcella would often use the same eyewitness and produce confessions that defendants said were coerced or false.
Melissa L. Breger (Albany Law School) has posted Transforming Cultural Norms of Sexual Violence Against Women (Journal of Research in Gender Studies, Volume 4(2), 2014, pp. 39–51) on SSRN. Here is the abstract:
A version of these remarks was delivered at the Stoneman/Katz Human Rights, Gender and the Law Conference: The State of Equality in Comparative Perspective, held at Albany Law School in April of 2013. The conference transcript was assembled into a monograph to memorialize the conference itself, as well as the Spring 2013 Kate Stoneman1 Series of Events. These remarks were part of a larger panel examining the issue of law and “culture.” In my remarks, I addressed culture in modern society which, though an ambiguous concept, greatly informs our world and our actions. I examined how individuals have become complacent at times, adopting a culture that normalizes violence towards women. I posited that even while explicit gender bias is often deemed unacceptable, modern society is embedded with implicit biases against women. These implicit biases contribute to a culture that is imbued with gendered norms relating to domination, over-sexualization, violation, and power and control over women and girls. I argued that the way to remedy these problems is to change the underlying culture in such a way that redefines gendered norms and gender equality. This can be achieved at least partially by educating our children before these gendered norms become embedded in their minds.
Laird C. Kirkpatrick (George Washington University - Law School) has posted § 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures (5 Federal Evidence 9:9 (4th ed. Thomson/Reuters 2013)) on SSRN. Here is the abstract:
A particularly difficult evidentiary problem facing courts today is the proper standard for the authentication of electronic evidence or social media, such as emails, web pages, text messages, instant messaging and electronic signatures. This article analyzes the court decisions addressing these issues.
Erin D. Williams and David H. Kaye (MITRE Corporation and The Pennsylvania State University Dickinson School of Law) have posted Some Ethical Issues in Forensic Genetics (Forensic DNA Applications: An Interdisciplinary Perspective 527-37 (Dragan Primorac & Moses Schanfield eds. 2014)) on SSRN. Here is the abstract:
The extensive and sensitive nature of the genetic information locked in the coils of the DNA molecule gives rise to ethical issues in forensic genetics. This chapter surveys such issues. Section 1 offers an overview of the major concepts in bioethics, drawing some preliminary connections to issues that arise in forensic genetics. Section 2 addresses the ethics of acquiring DNA samples from crime scenes and other locations and from the bodies of individuals. Section 3 outlines a range of ethical concerns with DNA databanks and databases. Section 4 concerns efforts to infer phenotypes from genotypes to assist in criminal investigations. Section 5 identifies ethical concerns that arise in identifying human remains, particularly in mass disasters or conflicts. Finally, Section 6 discusses the professional and ethical standard for reporting forensic laboratory results and testifying about them. The chapter simply catalogs these issues. It appears in Forensic DNA Applications: An Interdisciplinary Perspective, a textbook and reference work of the International Society of Applied Biological Sciences. The part available for downloading includes only the introduction and chapter references.
Thursday, January 8, 2015
Lucian Dervan has this post at White Collar Crime Prof Blog. In part:
As we move into 2015, the ABA continues to work on the ABA National Inventory of Collateral Consequences of Conviction, a database with which every attorney should be familiar. Later this year, the ABA will also convene a National Summit on Collateral Consequences, which will bring together a host of experts from around the country to discuss important issues related to this topic.
The NACDL has also been working hard on the issue of collateral consequences. According to the organization, over 70 million Americans have some form of criminal record and there are over 50,000 known collateral consequences of conviction. In May of last year, the NACDL launched a major new report entitled Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest and Conviction.