Thursday, July 7, 2016
Lorenn Walker (Hawai'i Friends of Restorative Justice) has posted Re-entry Circles for the Innocent: The Psychological Benefits of Restorative Justice and Taking Responsibility in Response to Injustice (in Response to Injustice, pp. 139-157, The Psychology of Restorative Justice: Managing the Power Within, Ed. Theo Gavrielides, Ashgate: Surrey, England 2015) on SSRN. Here is the abstract:
While restorative practices are generally for people who take responsibility for committing crimes, there are psychological advantages in assuming responsibility for dealing with injustice regardless of who caused the problems. This kind of responsibility taking is future oriented and is not the same as being accountable for committing a crime. This paper examines what taking responsibility means for reentry planning circles. The circles apply restorative justice and solution-focused brief therapy for incarcerated individuals to plan for their needs, including making amends with harmed loved ones, and others, who meet with them in prison. The case of a convicted woman who maintains her innocence, but who had a reentry circle, is studied.
Dennis J Baker has posted Lesser Included Offences, Alternative Offences and Accessorial Liability on SSRN. Here is the abstract:
In this essay, I shall examine when an alternative offence and also a lesser-included offence is available for an accessory. Particular reference will be made to the offences of manslaughter and murder. It shall be argued, that the decision in R. v Jogee and Ruddock v The Queen is wrong as far as it holds that an accessory can be liable for manslaughter when the principal has been convicted of murder, because it is necessary to prove that the accessory intended the principal to perpetrate the actus reus of the relevant offence with the requisite mens rea for that offence. In such a scenario the accessory does not intentionally assist or encourage the more serious offence (murder), so she cannot be derivatively liable for it, and the principal does not perpetrate the less serious offence (manslaughter), so there is no offence of manslaughter for the accessory’s liability to derive from. The accessory only attempts to assist or encourage the principal to engage in conduct that has the potential to form the conduct element of constructive manslaughter. Such a conviction would rest on a presumption of participation in a result crime, when no result was in fact caused by the non-perpetrated crime (manslaughter), but instead the result was caused by an alternative more serious crime (murder), which was in fact perpetrated. If the principal had done the actus reus that the accessory intended (i.e. unlawfully inflict a.b.h.), the victim most likely would not have been killed and it is pure speculation to suggest the victim could have been killed by a.b.h. as opposed to the act of grievous bodily harm (g.b.h.) or act of intentional killing, which in fact killed the victim. It shall be argued that in such cases it is best to prosecute the putative assister or encourager under sections 44 or 45 of the Serious Crime Act 2007, for attempting to assist or encourage a potential aggravated assault.
Wednesday, July 6, 2016
Kevin E. Lerman has posted Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs (6 UC Irvine L. Rev. (2017 Forthcoming)) on SSRN. Here is the abstract:
After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies. This includes couriers and mules who transport drugs for small amounts of money.
Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions. The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers. This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions. Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules. These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.
Orin Kerr has this post at The Volokh Conspiracy. In part:
Comey’s announcement takes the path of the least politicalization. Comey is a former career prosecutor who served twice as a political appointee in George W. Bush’s Justice Department. He is now serving a non-renewable 10-year term as FBI director that expires in 2023. It’s hard to come up with a clear argument for why Comey would be beholden to Clinton or why his recommendation would be politically biased.
From The New York Times:
To many observers, the court essentially said that a politician can be found guilty of corruption only if the government can definitively show an official “quo” in response to a benefactor’s “quid” — a very high bar in a world of winks and nods.
“When you have a system that defines the line between illegal and legal as it does, there are ways of kind of working through it,” Mr. Abramoff said. “Maybe 95 percent or 99 percent of what I did wasn’t really illegal.”
Michael S. Pardo and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Introduction to Philosophical Foundations of Law & Neuroscience (Philosophical Foundations of Law and Neuroscience, Dennis Patterson & Michael S. Pardo, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This is the introductory chapter to the forthcoming collection, Philosophical Foundations of Law and Neuroscience (Dennis Patterson & Michael S. Pardo eds., Oxford University Press, 2016). We first offer some observations about this rapidly growing field and the variety of issues raised by the interaction of law and neuroscience. We then discuss how philosophy may contribute to the field. Finally, we summarize the chapters in the book.
Tuesday, July 5, 2016
Phoebe Joan Galbally (University of Melbourne, Law School, Students) has posted Playing the Victim: A Critical Analysis of Canada’s Bill C-36 from an International Human Rights Perspective (Melbourne Journal of International Law, Vol. 17, Forthcoming) on SSRN. Here is the abstract:
This article analyses the recent legislative reforms regulating the Canadian sex industry, Bill C-36, the Protection of Communities and Exploited Persons Act. Bill C-36 has been described as an ‘abolitionist’ approach to sex work, drawing heavily from the ‘Nordic model’ which is increasingly being adopted across the globe. This ‘abolitionist’ approach rests on the radical feminist perspective of sex work as inherently exploitative, and accordingly, seeks to re-focus criminal measures solely on the demand-side of the transaction. This article examines the foreseeable impact of the abolitionist perspective enshrined in Bill C-36 on the lives of domestic Canadian sex workers, from an international human rights perspective, paying particular attention to the Convention on the Elimination of All Forms of Discrimination against Women.
From Baltimore Magazine:
In issuing the decision, Welch cited deficiencies in Syed's legal defense as the reason for the new trial, saying his attorney, "rendered ineffective assistance when she failed to cross-examine the state's expert regarding the reliability of cell tower location evidence."
Thursday's decision comes more than a year after Syed's defense team launched an appeal process, an effort that gained momentum after the runaway success of Serial, the podcast that re-examined the official narrative of the crime, raising inconsistencies and sparking doubt in the minds of many listeners. Interestingly though, the information that prompted Judge Welch to invalidate the conviction was uncovered not in Serial but in Undisclosed, a spin-off podcast co-hosted by Syed's family friend Rabia Chaudry.
The Supreme Court of Canada [official website] on Thursday overturned [decision] a man's drug possession and trafficking conviction because he had been made to wait too long for his trial. The man, Shane Vassal, had waited three years before his three day trial was held, leading the court to the conclusion that he was denied the right to be tried within a reasonable time in violation of s.11 of the Canadian Chart of Rights and Freedom [materials]. Justice Michael Moldaver [official profile], writing for the court, stated that, in considering a legal case, "courts must be careful not to miss the forest for the trees," and that "[l]ooking at this forest - that is, the overal delay in a case of moderate complexity - [he is] satisfied that the delay was unreasonable." Adding to the courts rationale was the fact that Vassal had taken "proactive steps...to have his case tried as soon as possible." After discussing the inability of Vassal to move the case along, despite his varied efforts, and the actions of his six co-accused to cause the delay, the court allowed the appeal and issued a stay of proceedings.
Monday, July 4, 2016
|1||213||Living at the Intersection: Laws & Vehicle Residency
Jessica So, Scott MacDonald, Justin Olson,Ryan Mansell and Sara Rankin
Seattle University, School of Law, Students, Seattlle University, School of Law, Students, Seattlle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
Date posted to database: 8 May 2016
|2||159||Shut Out: How Barriers Often Prevent Meaningful Access to Emergency Shelter
Suzanne Skinner and Sara Rankin
Seattle University School of Law and Seattle University School of Law
Date posted to database: 10 May 2016
|3||82||Leniency, Collusion, Corruption, and Whistleblowing
Reinaldo Luz and Giancarlo Spagnolo
CAPES, Coordenação de Aperfeiçoamento de Pessoal de Nível Superior and Stockholm School of Economics (SITE)
Date posted to database: 2 May 2016 [4th last week]
|4||59||Neuroethics and Criminal Responsibility – A Criminal Law Comment on Neil Levy's Consciousness and Moral Responsibility
University of Lisbon - School of Law
Date posted to database: 14 Jun 2016 [new to top ten]
|5||55||A Neuro-Legal Lingua Franca: Bridging Law and Neuroscience on the Issue of Self-Control
Joshua W. Buckholtz, Valerie F. Reyna andChristopher Slobogin
Harvard University, Cornell University and Vanderbilt University - Law School
Date posted to database: 2 Jun 2016 [7th last week]
|6||51||Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 19 Jun 2016 [new to top ten]
|7||47||Chapter Three. The Case Against Retribution
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 9 May 2016 [8th last week]
|8||45||'Your Corrupt Ways Had Finally Made You Blind': Prosecutorial Misconduct and the Use of 'Ethnic Adjustments' in Death Penalty Cases of Defendants with Intellectual Disabilities
Michael L. Perlin
New York Law School
Date posted to database: 23 May 2016 [9th last week]
|9||44||The Offence of Knowingly Presenting False or Forged Evidence in the Rome Statute
Moscow State Institute of International Relations (MGIMO)
Date posted to database: 20 Jun 2016 [new to top ten]
|10||43||The Case Against Euthanasia and Assisted Suicide
University of Otago - Faculty of Law
Date posted to database: 8 Jun 2016 [new to top ten]
Sunday, July 3, 2016
Saturday, July 2, 2016
Stu Marvel has posted Response to Tuerkheimer – Rape on and off Campus, The Vulnerable Subject of Rape Law: Rethinking Agency and Consent (Emory Law Journal Online, Volume 65, 2016) on SSRN. Here is the abstract:
Tuerkheimer's article for the Emory Law Journal, Rape On and Off Campus, extends her earlier work on sexual agency, consent, and the inadequate nature of U.S. rape law to examine the disconnect between widely acknowledged cultural norms around sex, and the stubborn recalcitrance of rape laws to social reform. This response applies some of the insights of vulnerability theory to Tuerkheimer's piece with the goal of extending these important conversations into new analytical fields. The theory provides a useful vantage upon the systemic and historical patterns of inequality that lead to violence against women, as well as the legal and social means for redress. By tracking questions of consent, criminality, and sexual agency through a vulnerability lens, we may move away from the "vulnerable victim" model to engage a more robust understanding of resilience and institutional responsibility.
Friday, July 1, 2016
Susan Dimock (York University) has posted Introduction: A Trilogy of Papers on the Malum Prohibitum — Malum in Se Distinction in Criminal Law (Dialogue, Volume 55, Issue 01, pp. 1-7, March 2016) on SSRN. Here is the abstract:
It has seemed to many legal scholars and philosophers of law that any plausible approach to justifying criminal prohibitions and criminal punishments will have difficulty justifying the inclusion of mala prohibita offences in penal law. To understand why, we must explain what we mean when we refer to conduct that is (merely) ‘malum prohibitum,’ and contrast it with its contrary, conduct that is malum in se. The distinction is most commonly drawn as follows: conduct mala in se is morally wrongful prior to and independently of law, whereas acts that are mala prohibita are not wrongful prior to and independently of law. Working just with this simple contrast, we can explain why so many theorists have thought that the use of mala prohibita offences (the adoption of criminal laws that prohibit and punish conduct that was not wrongful prior to its criminalization) is inherently suspect; such offences are suspect because they seem to condemn conduct that does not deserve condemnation (because it is not pre-legally morally wrongful), and to punish people for engaging in actions they had no pre-existing moral duties to avoid. Reflecting very briefly on how the ‘problem’ of mala prohibita criminal laws is characterized within a range of diverse theories of criminalization and punishment will illuminate why they have seemed to many to pose unique justificatory challenges.
Jeffrey Selbin , Stephanie Campos , Sasha Feldstein , Marina Fisher and Nathaniel Miller (University of California, Berkeley - School of Law , University of California, Berkeley - School of Law , University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students , University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students and University of California, Berkeley, School of Law, Students) have posted California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State (2016 Update) on SSRN. Here is the abstract:
This report updates our 2015 study on the enactment and enforcement of anti-homeless laws in California (http://ssrn.com/abstract=2558944) with new ordinance data from cities and updated arrest data from the FBI’s Uniform Crime Reporting Program. We find that California cities are enacting and enforcing anti-homeless laws in record numbers. In contrast with historical post-recession trends, arrests of people who are homeless continue to rise in spite of an improving economy. Further, cities appear to be arresting people increasingly based on their homeless status as opposed to any concrete unlawful behavior.
Thursday, June 30, 2016
The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.
Ben Trachtenberg (University of Missouri School of Law) has posted Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books (60 Saint Louis University Law Journal 543 (2016)) on SSRN. Here is the abstract:
Among the more important decisions a law teacher makes when preparing a new course is what materials to assign. Criminal procedure teachers are spoiled for choice, with legal publishers offering several options written by teams of renowned scholars. This Article considers how a teacher might choose from the myriad options available and suggests two potentially overlooked criteria: weight and price.
The Article then explores the possibility of providing criminal procedure casebooks to law students for much less money than is currently charged, taking advantage of the public domain status of Supreme Court opinions, which form the backbone of most criminal procedure syllabi. The Article suggests that law schools could encourage faculty to produce casebooks that would be made available to our students for the cost of printing, with electronic versions available gratis (that is, “free” as in “free beer”).
Wednesday, June 29, 2016
Corinna Lain (University of Richmond - School of Law) has posted Death Row, Calls for Indifference, and Redemption of the Soul (77 Ohio St. L.J. Furthermore, Forthcoming) on SSRN. Here is the abstract:
In this essay, an invited response to Marah McLeod’s article "Does the Death Penalty Require Death Row? The Harm of Legislative Silence," I first engage with McLeod’s paper, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with analytical moves along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The other stems from McLeod’s description of death row as originally intended to facilitate redemption of the soul in preparation for destruction of the body. For those who still care about redemption of the soul — and religion runs deep in arguments for the death penalty and against it — how do the conditions of death row impact the opportunity for redemption, and how might the answer to that question contribute to the death penalty discourse today? A good paper asks important questions. A great paper inspires questions of their own. Does the Death Penalty Require Death Row? is a great paper.
The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody.
Stephen Morse (University of Pennsylvania Law School) has posted Actions Speak Louder Than Images: The Use of Neuroscientific Evidence in Criminal Cases (Journal of Law and the Biosciences, pp. 1–7, 2016) on SSRN. Here is the abstract:
This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific evidence to the precise legal question being addressed. These studies demonstrate yet again that in virtually all cases, actions speak louder than images and that when the behavioral evidence is unclear, the neuroscientific evidence is scarcely helpful in resolving the legal issue.
Tuesday, June 28, 2016
Marc Edelman (City University of New York - Baruch College, Zicklin School of Business) has posted A Sure Bet? The Legal Status of Daily Fantasy Sports (Pace Intellectual Property, Sports & Entertainment Law Forum, Forthcoming) on SSRN. Here is the abstract:
This keynote address, delivered at Pace Law School on March 16, 2016, provides an overview of the legal status of “daily fantasy sports” and explains why the legality — or illegality — of the industry is not a sure bet. It begins by providing a brief background of the origins of fantasy sports, and then turns to the impact of technologies such as the Internet, and the legal status of these games under both federal and state laws. It concludes by discussing the recent efforts to regulate “daily fantasy sports” through the courts and legislation.