CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Unreasonable Revelations: God Told Me to Kill Linda Ross Meyer Quinnipiac University School of Law Date Posted: 22 Apr 2019	211
2.	What is a War Crime? Oona A. Hathaway, Paul Strauch, Beatrice Walton and Zoe Weinberg Yale University - Law School, Yale University - Law School, International Court of Justice and Yale University - Law School Date Posted: 08 May 2019	157
3.	Declining Corporate Prosecutions Brandon L. Garrett Duke University School of Law Date Posted: 25 Apr 2019	154
4.	The Complicated Story of FOSTA and Section 230 Eric Goldman Santa Clara University - School of Law Date Posted: 17 Apr 2019 [5th last week]	153
5.	Ordinary Causation: A Study in Experimental Statutory Interpretation James Macleod Columbia Law School Date Posted: 09 Apr 2019 [6th last week]	129
6.	Inventing the War Crime: An Internal Theory Jessica Laird and John Fabian Witt Yale University, Law School, Students and Yale University - Law School Date Posted: 21 Apr 2019 [7th last week]	110
7.	James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' John Mikhail Georgetown University Law Center Date Posted: 25 Mar 2019 [8th last week]	109
8.	Limiting Identity in Criminal Law Mihailis Diamantis University of Iowa - College of Law Date Posted: 27 Mar 2019 [9th last week]	99
9.	Sorting Out White-Collar Crime Miriam H. Baer Brooklyn Law School Date Posted: 27 Mar 2019 [10th last week]	99
10.	Weaponized Racial Fear Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 09 Apr 2019 [new to top ten]	67

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance Michele LaVigne and Sally Miles University of Wisconsin Law School and affiliation not provided to SSRN Date Posted: 03 May 2019 [new to top ten]	318
2.	Misdemeanors by the Numbers Sandra G. Mayson and Megan T. Stevenson University of Georgia School of Law and George Mason University - Antonin Scalia Law School, Faculty Date Posted: 19 Apr 2019 [3rd last week]	149
3.	Judicial Audiences: A Case Study of Justice David Watt's Literary Judgments Elaine Craig Dalhousie University - Schulich School of Law Date Posted: 19 Apr 2019 [4th last week]	129
4.	How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate Anne L. Washington NYU Steinhardt Date Posted: 19 Apr 2019 [6th last week]	109
5.	The End is Near For the Per Se Rule in Criminal Sherman Act Cases Robert Connolly Law Office of Robert Connoilly Date Posted: 17 Apr 2019	107
6.	Driver's License Suspension in North Carolina Brandon L. Garrett and William Crozier Duke University School of Law and Duke University School of Law Date Posted: 15 Apr 2019 [7th last week]	99
7.	Weaponized Racial Fear Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 09 Apr 2019 [9th last week]	67
8.	Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell Michigan State University College of Law, Columbia Law School, Law Office of Michael Laurence, University of Iowa - College of Law, University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law Date Posted: 14 Apr 2019 [10th last week]	66
9.	Beyond #MeToo Deborah Tuerkheimer Northwestern University - Pritzker School of Law Date Posted: 16 Apr 2019 [new to top 10]	65
10.	Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane University of Richmond School of Law Date Posted: 07 May 2019 [new to top ten]	64

Arvidsson on Gambling and Video Game Loot Boxes

Christopher Arvidsson has posted The Gambling Act 2005 and Loot Box Mechanics in Video Games (Ent. L.R. 2018, 29(4), 112-114) on SSRN. Here is the abstract:

This article analyses loot box mechanics in relation to the Gambling Act 2005. These mechanics provide ‘gamers’ with an opportunity to pay real money to open an in-game box and acquire in-game items such as weapons, armour and cosmetics. This practice can be caught as a licensable gambling activity under UK law and relevant stakeholders should note that it is a criminal offence to provide facilities for gambling without an operating licence. The dividing line between licensable and non-licensable mechanics is the element of convertibility, which in turn necessitates the distinction between ‘Closed Loop’ and ‘Cashing in’ Mechanics.

Cohen on Moral Restorative Justice

Amy J. Cohen (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For decades, left proponents of restorative justice have wondered if their preference for “less state” would attract complex bedfellows and political alliances. But it was only as the crisis of mass incarceration hit American cultural and political consciousness that a wide range of libertarian and conservative political organizations and actors began to promote restorative ideals. This Article traces changing political, theological, and ideological articulations of restorative justice from the 1970s to now, knit together by a common grammar of relationality. It argues that today, restorative justice exemplifies a distinctively moral form of neoliberalism, complicating the arguments of scholars who describe rightwing criminal justice reform as exemplifying cost-cutting and efficiency. This account of restorative justice, in turn, reveals different possibilities and dangers for bipartisan collaborations: moral-relational values may be genuinely shared as they compete to establish highly disparate political, economic, and social visions.

Givati on Preferences for Criminal Justice Error Types

Yehonatan Givati (Hebrew University of Jerusalem - Faculty of Law) has posted Preferences for Criminal Justice Error Types: Theory and Evidence (Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:

 

What shapes individuals' preferences for criminal justice error types, that is the preferences for convicting the innocent versus letting the guilty go free? The strong correlation between preferences for criminal justice error types and incarceration rates across countries highlights the importance of these preferences. I develop an instrumental theory and an intrinsic theory of the preferences for criminal justice error types. Using individual level data from the U.S., I find support for both theories. Consistent with the instrumental theory of preferences, gender, race, and concern about crime shape preferences. Consistent with the intrinsic theory of preferences, education and ideology also shape preferences. I confirm these findings using individual level data from 22 countries, and provide some suggestive evidence that culture shapes preferences too.

Green on Prosecutorial Discretion

Bruce A. Green (Fordham University School of Law) has posted Prosecutorial Discretion: The Difficulty and Necessity of Public Inquiry (123 Dickinson L. Rev. 589 (2019)) on SSRN. Here is the abstract:

 

Prosecutors’ discretionary decisions have enormous impact on individuals and communities. Often, prosecutors exercise their vast power and discretion in questionable ways. This Article argues that, to encourage prosecutors to use their power wisely and not abusively, there is a need for more informed public discussion of prosecutorial discretion, particularly with regard to prosecutors’ discretionary decisions about whether to bring criminal charges and which charges to bring. But the Article also highlights two reasons why informed public discussion is difficult—first, because public and professional expectations about how prosecutors should use their power are vague; and, second, because, particularly in individual cases, it is hard to know what decision-making process the prosecutor employed and what considerations entered into the prosecutor’s decision. Despite these challenges, the public can and should engage in more rigorous scrutiny of prosecutors’ work.

Continue reading

Garrett on Eyewitness Identification Policies in Virginia

Brandon L. Garrett (Duke University School of Law) has posted Self-Policing: Eyewitness Identification Policies in Virginia on SSRN. Here is the abstract:

 

Can police engage in self-policing of their own policies? Professional policing organizations increasingly emphasize the importance of adoption of best practices in police policies. However, there is very little regulation of police, and state law rarely itself sets out practices that police should follow. Absent legislation, police organizations must themselves draft and disseminate policy. This paper presents the results of studies used to assess the adoption of eyewitness identification policies in Virginia. Policymakers were focused on this problem because Virginia experienced a series of DNA exonerations in cases involving eyewitness misidentifications. While as of 2005, state law only required agencies to have some written policy in place, over time, but there was little guidance on what the policy should be. To remedy this problem, in 2011 the state law enforcement policy agency drafted a detailed model policy on eyewitness procedure. Nevertheless, as reported in an earlier 2013 study, those model practices were only being haltingly adopted. In particular, many agencies did not have blind or blinded lineups, in which the administrator does not know which photo is that of a suspect or cannot view which photo the eyewitness is examining. In 2018, all of the over-three hundred law enforcement agencies in Virginia had their policies on this subject requested again, using the state freedom of information law. Five years later, the responses show widespread adoption of the model policy. Improved eyewitness identification practices have been adopted by the vast majority of agencies over the past five years. This Article concludes by asking what contributed to this positive and extensive dissemination of model policy.

Pardo on Confrontation After Scalia and Kennedy

Michael S. Pardo (University of Alabama School of Law) has posted Confrontation After Scalia and Kennedy (Alabama Law Review, Vol. 70, 2019) on SSRN. Here is the abstract:

 

This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures. Justice Scalia’s 2004 opinion in Crawford v. Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases. Although Crawford strengthened the right to confrontation in several respects, the subsequent decade produced significant backlash and disagreements—including dissenting opinions from Justice Kennedy—as the Court attempted to implement and develop confrontation doctrine. The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray, particularly in cases involving expert witnesses. The replacement of Justices Scalia and Kennedy (Crawford’s champion and one of the principal dissenters in subsequent cases, respectively) with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine’s future. This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop, distinguishing between cases involving experts and non-expert witnesses.

Choi on Decrypting Cellphones

Bryan H. Choi (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted The Privilege Against Cellphone Incrimination (97 Texas Law Review Online 73 (2019)) on SSRN. Here is the abstract:

 

The standard approach to the problem of compelled decryption of cellphones has been to treat cellphones like glorified lockboxes. The contents are assumed to be the equivalent of private papers, leaving only the passcode subject to dispute. Orin Kerr has helpfully labeled this dichotomy as the “treasure” versus the “key.”

Much of the debate has centered on whether the government may compel production of the key. Kerr’s position is that this debate over the key is essentially moot, because the treasure itself can never be privileged. Whether that treasure is encrypted or unencrypted should not change its availability to law enforcement.

This Essay takes a different tack: How might the line of cases refusing to compel decryption of cellphones be consistent with Fifth Amendment principles?

Continue reading

Donohue et al. on Right-to-Carry Laws and Violent Crime

John J. Donohue, Abhay Aneja and Kyle Weber (Stanford Law School, Stanford University and Columbia Business School - Economics Department) have posted Right‐To‐Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State‐Level Synthetic Control Analysis (Journal of Empirical Legal Studies, Vol. 16, Issue 2, pp. 198-247, 2019) on SSRN. Here is the abstract:

 

This article uses more complete state panel data (through 2014) and new statistical techniques to estimate the impact on violent crime when states adopt right‐to‐carry (RTC) concealed handgun laws. Our preferred panel data regression specification, unlike the statistical model of Lott and Mustard that had previously been offered as evidence of crime‐reducing RTC laws, both satisfies the parallel trends assumption and generates statistically significant estimates showing RTC laws increase overall violent crime. Our synthetic control approach also finds that RTC laws are associated with 13–15 percent higher aggregate violent crime rates 10 years after adoption. Using a consensus estimate of the elasticity of crime with respect to incarceration of 0.15, the average RTC state would need to roughly double its prison population to offset the increase in violent crime caused by RTC adoption.

Allena on Anti-Mafia Confiscation

Miriam Allena (Bocconi University - Department of Law) has posted Anti-Mafia Confiscation Against Corruption: The New Frontier of Human Rights (Italian Journal of Public Law, Issue 1/2019) on SSRN. Here is the abstract:

 

The Italian lawmakers have recently extended the anti-Mafia non conviction based confiscation to the persons suspected of belonging to a criminal association aimed to corruption or to the commission of various crimes against public administration. This provision, although apparently in line with the tendency increasingly widespread on a supranational level to use instruments of a broadly preventive character to fight serious crimes, raises some issues, especially in terms of compliance with human rights protection. Indeed, although these measures focus on property and not on individuals, in many cases they significantly affect the life and well being of the people involved.

After analysing the European Court of Human Right (ECtHR) case law on administrative measures having criminal nature and on Anti-Mafia non conviction based confiscation, the article investigates the legitimacy of the extension of this specific form of non-conviction based confiscation to the crimes against public administration.

Faure on Environmental Crimes in Europe

Michael G. Faure (University of Maastricht - Faculty of Law, Metro) has posted The Revolution in Environmental Criminal Law in Europe (Virginia Environmental Law Journal, 2017, Vol. 35(2), 321-356) on SSRN. Here is the abstract:

 

In this Article, I will argue that the way in which the concept of environmental crime has developed in Europe, or the way in which environmental crime has been defined in legislation, has dramatically changed in the past thirty years.

Faure & Weber on EU Approach to Law Enforcement

Michael G. Faure and Franziska Weber (University of Maastricht - Faculty of Law, Metro and University of Hamburg - Institute of Law and Economics) have posted The Diversity of the EU Approach to Law Enforcement — Towards a Coherent Model Inspired by a Law and Economics Approach (German Law Journal, 2017, Vol. 18(4), 823-879) on SSRN. Here is the abstract:

 

Traditionally in the division of labor between the European level and the Member States it was, roughly, the European legislature that set the norms and the Member States that took care of enforcing these norms. In various policy areas, an implementation deficit has been observed, which is said to be partly due to the Member States facing difficulties with the choice of procedural options. For that reason, among others, the European legislature increasingly prescribes the enforcement approach to the Member States to back up national legislation that implements European law. This Article examines the incoherence of the EU’s approach to law enforcement in the areas of consumer, competition, environmental, and insider trading laws. After setting out the EU’s legal competences with a view to law enforcement, the rather diverse picture — mixes — of private, administrative, and criminal law enforcement in the four areas will be illustrated.

Continue reading

Msaule on Production of Firearms and the Right to Silence

P.R. Msaule (University of Limpopo) has posted The Duty to Produce One’s Firearm for Inspection in Terms of the Firearms Control Act: The Right to Silence Under Siege? (Potchefstroom Electronic Law Journal, Vol. 21, 2018) on SSRN. Here is the abstract:

 

The right of the arrested and accused persons to remain silent at pre-trial and during their trial are significant to ensuring a fair trial. The purpose of the right to remain silent is to ensure that the state bears the duty to prove the guilt of the accused beyond reasonable doubt. In essence, the right serves to dissuade the state from engaging in any manner or form of coercing the accused person to assist the state in meeting its case, whether during pre-trial or during trial. An individual who is accused of committing an offence must not through his or her words or deeds assist the state in satisfying its burden of proof. The Firearm Control Act 20 of 2000 (the Act) seems to dilute these rights. The Act empowers the police official to request an owner of a legal firearm to produce it within seven days of the request at a threat of a criminal sanction. At the time the request is made the individual has been neither arrested for nor accused of a criminal offence. However, on the failure to produce the firearm on demand by a police official the individual may be charged with a criminal offence and evidence that has been obtained in terms of the Act would be admissible at the subsequent trial.

Continue reading

Kitai-Sangero on Safety and Hazards

Rinat Kitai-Sangero (College of Law and Business) has posted Changing the Paradigm of Models to safety and Hazards (55 Criminal Law Bulletin 50 (2019)) on SSRN. Here is the abstract:

 

This Article suggests a different conceptual analysis of the criminal justice systems. It suggests the change of the paradigm of models for the criminal justice system to the paradigm of safety and hazards. The advantages of this suggestion are twofold. First, while the rights of accused persons can be sacrificed on the altar of the “war on crime”, safety is about a process of persistent improvement. Second, the concept of safety captures more aspects of the criminal process than does the Due Process model, such as respecting the rights and needs of victims of crime and the therapeutics needs of all participants in the criminal process.

Garoupa & Mungan on Optimal Imprisonment and Fines with Non-Discriminatory Sentences

Nuno Garoupa and Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty and George Mason University - Antonin Scalia Law School, Faculty) have posted Optimal Imprisonment and Fines with Non-Discriminatory Sentences on SSRN. Here is the abstract:

 

When considering the optimal combination of monetary sanctions (costless) and imprisonment (costly) as deterrents, the traditional result is that imprisonment should not be imposed until monetary sanctions are completely exhausted. Therefore, imprisonment acts as a mere supplement to maximal fines. We show that, when wealth varies across individuals, it could be efficient to use imprisonment in combination with fines that do not exhaust the wealth of all individuals. The rationale is that, generally, it is impractical to tailor criminal sanctions as a continuous function of individuals' wealth.

Wright & Levine on Career Motivations of State Prosecutors

Ronald F. Wright and Kay Levine (Wake Forest University - School of Law and Emory University School of Law) have posted Career Motivations of State Prosecutors (THE GEORGE WASHINGTON LAW REVIEW [Vol. 86:1667]) on SSRN. Here is the abstract:

 

Because state prosecutors in the United States typically work in local offices, reformers often surmise that greater coordination within and among those offices will promote sound prosecution practices across the board. Real transformation, however, requires commitment not only from elected chief prosecutors but also from line prosecutors—the attorneys who handle the daily caseloads of the office. When these individuals’ amenability to reform goals and sense of professional identity is at odds with the leadership, the success and sustainability of reforms may be at risk.

To better understand this group of criminal justice professionals and their power to influence system reforms, we set out to learn what motivates state prosecutors to do their work.

Continue reading

Dawson on Compulsory Psychiatric Treatment

John Dawson (University of Otago - Faculty of Law) has posted The Process and Criteria for Compulsory Psychiatric Treatment (2015, 3 J Dawson chapter in Health Law in New Zealand, P Skegg and R Paterson eds (Thomson Reuters, Wellington, 2015)) on SSRN. Here is the abstract:

 

This publication includes three chapters on mental health law from the standard work on New Zealand’s health law. In this first chapter, the author considers the civil commitment regime for compulsory psychiatric treatment with a particular focus upon the development and functioning of the current legislation.

Murphy on Police Camera Activation Policies

Julian R. Murphy has posted Is It Recording? Racial Bias, Police Accountability, and the Body-worn Camera Activation Policies of the Ten Largest U.S.Metropolitan Police Departments in the USA ((2018) 9 Columbia Journal of Race & Law 141) on SSRN. Here is the abstract:

In recent years there has been a growing belief that the pressing problem of racial bias in policing might be ameliorated by a technical fix, namely, police body-worn cameras. Accordingly, body-worn cameras have been introduced in police departments across the country, giving rise to a variety of different internal guidelines and policies. This Note surveys body-worn camera policies of the ten largest metropolitan police departments in the United States in order to assess their relative effectiveness at combatting racial bias. Particular attention is paid to “activation” requirements, which specify the sorts of events police officers are required to record on their cameras. The survey shows that, at present, many body-worn camera policies are not appropriately calibrated to successfully reduce racial bias in policing. In particular, it is suggested that many current body-worn camera policies do not adequately target the two different strains of racial bias – implicit racial bias and deliberate racial profiling. This Note concludes by offering a draft activation policy for potential adoption by police departments to better use body-worn cameras to reduce racially biased police practices.

Berry on Individualized Executions

William W. Berry (University of Mississippi School of Law) has posted Individualized Executions (UC Davis Law Review, Vol. 52, No. 4, 2019) on SSRN. Here is the abstract:

 

States continue to botch lethal injection attempts. The decision to move forward with such procedures without considering the health of the inmate has resulted in a series of brutal, horrific incidents. In its Eighth Amendment jurisprudence, the Supreme Court has established that courts must give defendants individualized sentencing determinations prior to imposing a death sentence. Woodson v. North Carolina proscribes the imposition of mandatory death sentences, and Lockett v. Ohio requires that courts examine the individualized characteristics of the offense and the offender, including allowing the defendant to provide mitigating evidence at sentencing.

This Article argues for the extension of the Eighth Amendment Woodson-Lockett principle to execution techniques.

Continue reading