Monday, November 10, 2014
This paper presents a compact synthesis of the study of cognition in legal decisionmaking. Featured dynamics include the Story-telling Model (Pennington & Hastie, 1986), lay prototypes (Smith, 1993), motivated cognition (Sood, 2012), and coherence-based reasoning (Simon, Pham & Holyoak, 2001). Unlike biases and heuristics understood to bound or constrain rationality, these dynamics, it is maintained, identify influences that can radically alter the significance that decisionmakers give to evidence, and as a result the decisions they make, within a Bayesian framework of information processing.
Bill C-36 (Protection of Communities and Exploited Persons Act) marks a turning point in Canada’s approach to addressing prostitution that was spurred by the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford, which declared the old approach unconstitutional. This proposed legislation was recently passed by the House of Commons and has already been pre-studied by the Senate. It is expected to become law in the coming weeks.
Under the new approach, prostitution is no longer considered merely a nuisance, but is recognized as inherently exploitative. While “johns,” “pimps,” and human traffickers are criminally liable, prostitutes generally are not. This is the right approach to this complex issue. It represents a major shift in how the harms of prostitution are characterized and confronted in the criminal law. It will require substantial work from governments, police, and civil society to ensure effective implementation.
Sunday, November 9, 2014
|1||376||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
|2||249||Information Networks: Evidence from Illegal Insider Trading Tips
Kenneth R. Ahern
University of Southern California - Marshall School of Business
Date posted to database: 18 Oct 2014 [3rd last week]
|3||223||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 [[4th last week]
|4||213||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 [5th last week]
|5||202||The Impact of Whistleblowers on Financial Misrepresentation Enforcement Actions
Andrew C. Call, Gerald S. Martin,Nathan Y. Sharp and Jaron H. Wilde
Arizona State University (ASU) - School of Accountancy, American University - Kogod School of Business, Texas A&M University (TAMU) - Department of Accounting and University of Iowa - Henry B. Tippie College of Business
Date posted to database: 7 Oct 2014 [7th last week]
|6||182||Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash
University of Chicago Law School
Date posted to database: 23 Aug 2014
|7||159||A Conceptual Framework for the Regulation of Cryptocurrencies
Omri Y. Marian
University of Florida - Fredric G. Levin College of Law
Date posted to database: 15 Oct 2014 [9th last week]
|8||145||Unbundling Criminal Trial Rights
University of Chicago Law School
Date posted to database: 27 Aug 2014 [10th last week]
|9||135||Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw
Mark W. Bennett
U.S. District Court (Northern District of Iowa)
Date posted to database: 1 Oct 2014 [new to top ten]
|10||132||'May the Odds Be Ever in Your Favor': Lotteries in Law
Ronen Perry and Tal Zarsky
University of Haifa - Faculty of Law and University of Haifa - Faculty of Law
Date posted to database: 12 Sep 2014 [new to top ten]
Saturday, November 8, 2014
Orin Kerr has this post at The Volokh Conspiracy. In part:
Here’s a remarkable case from the Ohio Supreme Court, State v. Hoffman, involving an unconstitutional arrest warrant. The defendant was arrested for a misdemeanor based on a defective arrest warrant, leading to the discovery of evidence of murder. The remarkable part is why the arrest warrant was defective. For at least 17 years, magistrates in Toledo, Ohio were instructed to issue arrest warrants without ever actually making a probable cause determination. Officers would just say that the suspect had committed an offense, and the magistrates would issue the warrant without ever hearing the factual basis for that conclusion.
Local and federal law enforcement officials announced Wednesday that they had rescued a nursing assistant whose violent abduction in Philadelphia was caught on surveillance video. And as police credit that video for its role in finding Carlesha Freeland-Gaither, 22, and her alleged abductor, Delvin Barnes, another sort of surveillance technology also helped lead officials to the suspect and the victim: a GPS device, planted in Barnes’s car by the dealership that sold him the vehicle.
. . .
Investigators began tracking the movements of his car — a gray Ford Taurus — through the GPS device. The dealership installed it because of Barnes’s poor credit at the time of purchase.
Friday, November 7, 2014
Elizabeth N. Jones (Western State College of Law) has posted The Ascending Role of Crime Victims in Plea-Bargaining and Beyond (West Virginia Law Review, Vol. 117, No. 100, 2014)
This Article looks to the nationwide trend of promoting a victims’ rights agenda alongside three recent United States Supreme Court opinions affirming defendants’ rights during various stages of the plea-bargaining process, in an attempt to harmonize these seemingly anomalous rights. The three Supreme Court decisions focusing on defendants’ rights in the plea-bargaining context highlight the need to consider victims’ rights in that same milieu and to further guarantee victims the right to meaningful participation in all aspects of a criminal prosecution. Particularly as the constitutional rights of victims become further defined and embedded into the criminal justice system, ensuring a proper role for the crime victim is of timely and crucial concern.
A New Zealand police charge of "attempting to procure murder" against AC/DC drummer Phil Rudd has been dropped, his lawyer said.
Rudd, the 60-year-old drummer for the legendary hard rock band, had been accused of trying to have two men killed. But the Crown Solicitor decided there wasn't enough evidence to justify it, attorney Paul Mabey said in a statement.
"The charge alleging an attempt to procure murder should never have been laid. The Crown Solicitor's opinion was not sought. The charge is now withdrawn, within 24 hours of Mr. Rudd's first appearance in court," Mabey said. "Mr. Rudd has suffered unnecessary and extremely damaging publicity as a result of widespread and sensational reporting of a very serious allegation, which on any basis was never justified."
Rudd still faces other charges, including threatening to kill, Mabey said.
Philip F. DiSanto has posted Blurred Lines of Identity Crimes: Intersection of the First Amendment and Federal Identity Fraud (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
Several recent high-profile criminal cases have highlighted the dynamic nature of identity crimes in a modern digital era and the boundaries prosecutors sometimes push to squeeze arguably wrongful conduct into an outdated legal framework. In many cases, two federal statutes — 18 U.S.C §1028 and §1028A — provide prosecutors with potent tools to aggressively pursue online identity thieves. But the broadly defined terms of these provisions may also expose innocent parties to criminal liability.
This Note argues that broadly defined federal identity fraud statutes facilitate unconstitutional restrictions on protected speech.
This Reuters story, at the Yahoo site, includes a link to the referenced video:
Two New York police officers have been charged with assaulting a teenaged boy during his arrest in Brooklyn, prosecutors said on Wednesday, an unusual case in a city where prosecutions of police for excessive are rare.
After a brief chase on a Brooklyn sidewalk in August, Officers David Afanador, 33, and Tyrane Isaac, 36, can be seen in surveillance video footage hitting Kahreem Tribble, 16, even after he put up his hands in apparent surrender, Brooklyn District Attorney Ken Thompson said in a statement.
A central goal of federal prosecutors is to rehabilitate corporations, and not just to fine them. Some of the largest companies now obtain deferred and non-prosecution agreements that permit them to avoid an indictment and a conviction. In deciding not to fully pursue a conviction, prosecutors emphasize how they can secure positive changes to compliance and ethics programs. Such structural reforms implicate corporate governance, and can involve sustained interventions in the workings of a corporation. Lawrence A. Cunningham’s wonderful new article takes the provocative and counterintuitive position that prosecutors should care about rehabilitating corporate governance far more and not less. The fascinating case studies he provides suggest how insufficiently engaging with governance issues can result in a range of failures, from unnecessarily harming a company, to permitting recidivism, to magnifying governance problems or even creating new ones. Until the conflicting tendencies in corporate prosecutors are more firmly resolved, critics will continue to wonder whether the largest companies are treated as “Too Big to Jail.”
I. Glenn Cohen (Harvard Law School) has posted Front Matter, Preface, and An Introduction to: Patients with Passports Medical Tourism Law and Ethics (OUP 2014)) on SSRN. Here is the abstract:
Can your employer require you to travel to India for a hip replacement as a condition of insurance coverage? If injury results, can you sue the doctor, hospital or insurer for medical malpractice in the country where you live? Can a country prohibit its citizens from helping a relative travel to Switzerland for assisted suicide? What about travel for abortion? In my new book, Patients with Passports, just released by Oxford University Press, I tackle these important questions, and provide the first comprehensive legal and ethical analysis of medical tourism.
Medical tourism (or "medical travel") is a growing multi-billion dollar industry involving millions of patients who travel abroad each year to get health care. Some seek legitimate services like hip replacements and travel to avoid queues, save money, or because their insurer has given them an incentive to do so. Others seek to circumvent prohibitions on accessing services at home and go abroad to receive abortions, assisted suicide, commercial surrogacy, or experimental stem cell treatments.
Wednesday, November 5, 2014
Adam Lamparello and Charles E. MacLean (Indiana Tech - Law School and Indiana Tech Law School) have posted Riley v. California: The New Katz or Chimel? (Richmond Journal of Law and Technology, 2014 Forthcoming) on SSRN. Here is the abstract:
Justice Brandeis forecasted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” In the law enforcement and government surveillance context, technological advances have made it possible to store an individual’s DNA in a national database, and have made it nearly impossible for that same individual to send an email, download a YouTube video, or transmit a text message without knowing that the government might be watching — without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable — and unconstitutional. In Riley, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.
Aaron J. Ley and Gordie Verhovek (University of Rhode Island and University of California, Berkeley) have posted The Political Foundations of Miranda v. Arizona and the Quarles Public Safety Exception on SSRN. Here is the abstract:
When Dzhokhar Tsaernaev was taken into custody after the Boston Marathon bombing, the Obama Administration’s Justice Department moved to invoke the Quarles Public Safety Exception rather than inform the accused of his rights. A widespread debate about the utility of informing all suspects of their Miranda rights ensued. In this article, we use the Congressional Record to examine the political foundations of the Miranda rule, the Congressional response to Miranda, and the development of the Public Safety Exception announced in Quarles v. New York. We argue that, prior to the Miranda decision, there was widespread and robust political debate in Congress about informing suspects of their rights. This debate lasted for over a decade and, acting in concert with national political majorities, the US Supreme Court announced the Miranda ruling after a small group of US Senators were keeping Congress from acting on legislation that informed suspects of their rights. What separates Miranda from Quarles is that there was virtually no political debate in Congress about carving out this exception to Miranda and certainly there was no debate about applying it to terrorism suspects. After tracing the evolution and application of the Quarles Public Safety Exception, we argue that it requires a robust political debate in the elected branches of the US system, especially in light of the Obama Administration’s application of it to terrorism suspects.
Tuesday, November 4, 2014
Amy J. Sepinwall (University of Pennsylvania - Legal Studies Department) has posted two pieces on SSRN about corporate criminal liability. The first is Responsible Shares and Shared Responsibility: In Defense of Responsible Corporate Officer Liability. Here is the abstract:
When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation's behalf. But according to the responsible corporate officer (RCO) doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking "consciousness of wrongdoing," nonetheless have "a responsible share in the furtherance of the transaction which the statute outlaws." In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed to prevent. Just so long as the executive in question had the authority to prevent the corporate crime and failed to do so, she may be targeted in a criminal suit.
Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may be required to reconsider the defense for the first time in over twenty years. Thus, now is a good time to re-examine the entrapment defense that the Supreme Court first recognized eighty years ago.
Jessa Lingel and Aram Sinnreich (Microsoft Corporation - Microsoft Research New England and Rutgers, The State University of New Jersey - School of Communication and Information (SC&I)) have posted Incoded Counter-Conduct: Technologies of Resistance and Conditions of Incarceration on SSRN. Here is the abstract:
This paper reviews penal history in order to consider forms of resistance to mass surveillance. Because experiences of surveillance are endemic to incarcerated life, identifying tactics of resistance among these populations provides valuable insights for potential forms of counter-conduct in other circumstances of ubiquitous monitoring. We focus on three forms of protest: hunger strikes, alternate communication networks and viral dance videos, which we frame through Foucault’s theory of askesis. We introduce the term incodification as a means of describing conditions of continuous surveillance ingrained into infrastructures of everyday life, even as these conditions give rise to tactics of resistance like those identified in this paper. Our objective in introducing this term, and with our analysis as a whole, is to provoke theoretical and activist projects that account for and subvert infrastructures of incodification.
Valerie P. Hans , John H. Blume , Theodore Eisenberg , Amelia Courtney Hritz , Sheri Lynn Johnson , Caisa E. Royer and Martin T. Wells (Cornell University - School of Law , Cornell Law School , Cornell University - Law School , Cornell University , Cornell Law School , Cornell University and Cornell University - School of Law) have posted The Death Penalty: Should the Judge or the Jury Decide Who Dies? on SSRN. Here is the abstract:
This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the state of Delaware from 1977-2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision making authority in capital trials. Controlling for a number of legally-relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, stranger homicides, and the victim’s gender also increased the likelihood of a death sentence, as did the county of the homicide. We reflect on the implications of these results for debates about the constitutionality of judge sentencing in capital cases.